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Every employer has that one employee who can not adequately perform their job duties. Whether that person is a salesman who consistently fails to meet quotas, an employee who continuously receives negative performance reviews, or an editor who misses typos; such incompetence can hinder a business’ efficiency. In these situations, there are proper steps that can be taken to terminate a person for just cause due to their incompetence.

Parent v. Spielo Manufacturing Inc., 2013 NBQB 394 (“Parent”)

The 2013 case Parent, provides an excellent example of an employer taking the “proper steps” to terminate based on incompetence.  In this case, the employee, Mrs. Parent, was a Quality Tester for five years with the Company. In 2009, Mrs. Parent took an unpaid leave from work. When she returned over a year later, it was apparent that she could not competently perform the required job duties.

Upon returning to work, Mrs. Parent scored poorly on her performance review and was given a 3 month performance improvement plan. Mrs. Parent did not meet the goals of the plan and was given multiple written notices to that effect.

On June 21, 2011, Mrs. Parent was given a written warning which stated;

As a result of the above issued, I feel that I must now emphasize in writing how important it is for you to understand and address these issues. This is not something I do lightly or without a considerable amount of thought.

Immediate improvement is required and you will be expected to maintain the improvement in the above-mentioned areas, or you will be subject to further corrective action, including possible termination of employment. During the next 60 days we will meet once a month to discuss your progress related to these issues. You will maintain a daily activity log that will be emailed to me at the end of each work week (Friday’s at 5:00 pm).

Once again, on August 24, 2011, Mrs. Parent was given written notice of her poor performance. The notice emphasized a need for improvement and that failure to do so could result in disciplinary action. At the end of the year she did another performance review. Mrs. Parent was notified of her poor score and was then informed that she was being dismissed, effectively immediately, for incompetence.

The Court in Parent, concluded that Mrs. Parent’s employer tried their best to accommodate Mrs. Parent’s situation and upheld the dismissal on the basis of incompetence. This is particularly interesting considering Mrs. Parent’s reason for taking leave in 2009. The leave was due to the birth of her child who had serious health issues. She returned to work as a single parent who had to make multiple hospital visits a week for her child. Notwithstanding these circumstances, the Court still upheld the dismissal for cause and found Mrs. Parent was not entitled to a reasonable notice period or payment in lieu of notice.

Key Takeaway’s From Parent

  1. Just Cause. Proving just cause on the basis of incompetence is no different than establishing just cause for any other ground. In this case, the employer proved on a balance of probabilities that there was just cause for termination.
  2. Degree of Incompetence. The employer must go beyond proving displeasure with the employee’s performance. “Incompetence” means that the employee is incapable of performing the job, or, that the employee is possibly capable of doing so, but consistently failing to meet a reasonable standard of performance. Here, the employer proved the latter.
  3. Communication With Employee. In Parent, the employer clearly made known to the employee the requisite standards it wanted its employees to meet during the numerous performance reviews, and written warnings it gave to Mrs. Parent. The employer was also made clear to Mrs. Parent what she was failing to do and, importantly, documented all performance issues in writing.
  4. Incapable of Growing. Employers must give the employee a reasonable amount of time to improve their poor performance before determining if they are incapable of performing their job duties. What a reasonable amount of time is will depend on the circumstances in each case.
  5. Warning of Dismissal. There must be a clear and unambiguous warning that the employee’s job is in peril and that he or she will, not may, have their employment terminated if their performance does not improve. The employer should ensure that it does not condone the incompetent behaviour.
  6. Any employer can terminate an incompetent employee. In some situations, this might mean they have to be willing to pay. However, Parent proves that, if the proper process is followed a just cause argument on the basis of substandard performance and/or incompetence can be made successfully.