March 17, 2004 by Israel Foulon LLP
Question: We have an employee that is continually late to work. This has been going on for an extensive period of time and she keeps arriving later and later. Can we dismiss her for just cause because of this?
Answer: Summary dismissal is an extreme measure and one to be taken seriously. A single incident of lateness will not justify dismissal. An employer would be expected to formally warn the employee before proceeding with dismissal, a procedure known as “progressive discipline.” It is important for an employer to develop a policy on discipline and dismissal that is followed on a consistent basis. An employer should also keep accurate records and note each time an employee has been given a warning or has been disciplined. The employee should be specifically advised at the time of warning that further incidents will result in disciplinary action being taken, up to and including termination of employment. Progressive discipline should then be taken with each incident being carefully documented, which may ultimately culminate in termination of employment.
But employers should be aware that not only will they have to take progressive disciplinary action against the employee, but should also consider the following questions to determine whether a termination is sustainable on the basis of lateness:
- How long has the employee worked for you?
- When did the employee start being late?
- How often is the employee late?
- Is there a legitimate reason that the employee is late?
- Have you discussed the problem with the employee?
- Have you disciplined the employee due to her lateness?
- Have you recorded the instances of discipline?
- Do you have a policy which details procedures regarding discipline for excessive lateness?
- Are other employees ever late?
- How are they treated?
- How have you dealt with similar problems in the past?
A certain amount of lateness will not justify dismissal. But under specific circumstances where progressive discipline has been implemented and where the lateness is habitual or demonstrates a lack of concern for the employer, it may be considered just cause. But such a determination is fact specific and will require a careful consideration of the particular circumstances in question. Examine your actions and the actions of the employee to get a clear idea of the proper steps to take. If you are considering a dismissal for cause, it would be advisable to obtain advice from an employment lawyer first.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or pi@qtw38575.mywhc.ca. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today