Getting progressive discipline right

By Stuart Rudner and Anique Dublin

An Ontario court last month ruled that an employer did not have just cause to terminate the employment a manager, despite her many faults, because it failed to apply progressive discipline.

Background

In the case of Hussey v Bell Canada, Amanda Hussey was employed by Bell Canada, first as a sales representative and later as store manager.

On many occasions between June 3, 2016, and Nov. 25, 2016, Hussey breached Bell’s policies regarding punching in and out and punctuality. This behaviour culminated in her receiving a written notice of discipline on Nov. 29, 2016. The letter advised Hussey that adherence to Bell’s policies were non-negotiable and cautioned her that further breach of its policies may result in the termination of her employment.

Hussey’s timekeeping record did not improve. Nevertheless, she was subsequently promoted twice, first in January 2017 and again in May 2017.

In May 2017, Hussey was assigned to manage Bell’s Lindsay, Ont., store. On June 7, 2017, one of the store’s employees sent an email to the regional manager in which she set out a series of complaints about Hussey’s conduct. The complaints included two occasions when Hussey had arrived up to an hour and 45 minutes late; seven occasions when she left up to an hour and 15 minutes early; and one occasion when Hussey left a part-time staff member to close the store alone.

Following the complaint, Bell interviewed the employee and consulted Dayforce, its employee scheduling tool. Dayforce revealed that in addition to the incidents set out in the complaint from the employee, there were other occasions where Hussey failed to comply with Bell’s policies.  

As a result, on June 15, 2017, the regional manager for the Lindsay store contacted Bell’s HR department and recommended that Hussey’s employment be terminated. The following day, Hussey’s employment was terminated for cause.

Consequently, Hussey filed a complaint for unjust dismissal under the Canadian Labour Code.

Decision

It was held that Hussey’s employment was unjustly terminated. The adjudicator concluded that despite Hussey’s many faults, Bell had an obligation to apply progressive discipline and it failed to do so.

The adjudicator found that Bell was aware of Hussey’s cavalier attitude regarding attendance and scheduling but did not take much action to correct the situation.

The adjudicator agreed that Hussey did take advantage of the relaxed supervision to which she was subjected and generally behaved as though the policies did not exist. However, “the concept of progressive discipline requires a great deal more than the delivery of one letter of warning,” said the adjudicator. If Bell wanted to ensure that Hussey took the policies seriously, it should have done much more to reinforce its expectations.

The adjudicator pointed out that Hussey was never spoken to again about her behaviour after the delivery of the warning letter; instead, she was promoted twice. The adjudicator concluded that it was not surprising that Hussey did not consider a breach of the policies to be serious enough to warrant her termination, and believed she could get away with ignoring them.

The adjudicator also found that Bell applied its policies in a discriminatory manner because it did not terminate the employment of other store managers who had the same punching-in-and-out issues.  

For a more detailed discussion of just cause for dismissal, and the need for progressive discipline, you can have a look at Stuart’s Thomson Reuter’s text You’re Fired! Just Cause for Dismissal in Canada, which includes a detailed review of the law and a library of case summaries.

Anique Dublin is law clerk and billing clerk a at Rudner Law in Toronto.