Don’t Wait: Condonation of Employee Behaviour Limits an Employer’s Options

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By: Karina Pogosyan

Last month a news story came out with a video that showed a middle school teacher in Charlotte, North Carolina, brazenly smoking in class in front of his grade 8 students. His employer later issued a statement that said he was suspended with pay pending the conclusion of an investigation.

How your organization responds to bad workplace behaviour such as this is critically important because it determines what legal steps you can and cannot take with this employee, should other problematic behaviour arise in the future. 

In the above example, if the employer did not do anything and chalked up the teacher’s smoking in the classroom to an experiment, a joke or simply a one-off (teachers are human and have bad days too after all), this would preclude the school from later relying on this teacher’s smoking in class in his performance review, future decision respecting discipline or even for cause termination. The reason for that is due to a legal principle called condonation.

An employer condones behaviour whenever it fails to properly respond to employee misconduct. This can sometimes happen either due to lack of knowledge of the employer’s legal obligations, poor appreciation of the facts surrounding the incident, or simply the employer’s desire of not wanting to get a good person “into trouble” over a “minor one-off”. 

However, condoning an action where an employee misbehaves or breaks the rules can be costly. On the one hand, it sets a very bad precedent for other employees in the organization, who may now think that the employer is lax and that they can do the same with little to no consequences. On the other hand, if another employee subsequently does something similar and does get disciplined, it may lead to claims of harassment or even discrimination because “someone else they know” was not disciplined by their employer in the same way, or at all. 

Importantly, if an employer repeatedly condones different types of misconduct, it will not be able to later rely on them to establish termination for cause. In that case and depending on the employee’s tenure with the organization and other factors, the employer that wants to remove the problem employee from the workforce may have to pay a considerable sum for termination pay and other entitlements.

Under the Employment Standards Act, 2000, the employer is not required to provide notice of termination, termination or severance pay to “An employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.” Although it is typically challenging for an employer to make out the case for a termination for cause, it becomes easier if the employer has a consistent approach to discipline that is used in a fair and timely manner and that is properly documented. 

Experienced Seabrook Workplace Law lawyers are always available to discuss any employee concern with you and to help you make the right decision for your particular case. Contact us to speak with a lawyer today.

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