Howard Levitt: This employer misplayed a dismissal so badly that it should serve as a guide for everyone

financialpost.com:

This is the story of a well-intentioned Manitoba employer whose instincts failed it at every turn. It took a promising defence and, through a series of common errors, ensured that it could not succeed.

It dismissed an employee of whom it could be said, if any business had even two employees like her, the business could not survive. In other words, it had good reason to fire her without severance-for cause.

But it made mistakes at every pass, which I see too commonly, to the point that this case could be a checklist for every company- in terms of what not to do.

There were certainly admonitions. But criticism is not a warning. To be a legal warning supporting an ultimate dismissal for cause, they must actually warn the employee of future consequences if the misconduct continues. Anything less is simply training, not a “warning”.  A warning reads like this, “Any future similar incident will result in your dismissal for cause without severance.” No ambiguity in that. Few “warnings” that I see qualify. Poor as her performance was, the employer had done little to build up a case by setting the standards, providing the requisite training and providing appropriate warnings.

Indeed, it said the opposite. It declared that the employee was let go as result of a restructuring even though there was no restructuring at all. The company said that it had specified that to permit the employee to collect EI and out of consideration for her feelings. But it will now be difficult for the employer, if sued, to claim that that dismissal letter was disingenuous and the employee was actually fired for cause. The only exception would be if the cause was “discovered” after the employee’s dismissal. If the employer knew about the cause and chose