Employers do not have to provide notice of termination or pay in lieu thereof if there was \u201cjust cause\u201d to terminate the employee.\u00a0 Just cause exists if the employee has committed a serious act of misconduct such as an act of insubordination or incompetence.<\/p>\n
So what happens when an employer does not do anything about the misconduct? Can it be said that the employer has condoned behaviour that would otherwise amount to cause for termination?<\/p>\n
Condonation occurs when an employer fails to terminate an employee for just cause promptly after an act of misconduct made by the employee.\u00a0 This is because the employer\u2019s failure to act in a swift manner may have occurred because the employer actually did not feel the misconduct warranted an immediate termination and, as such, they simply allowed or ignored the misconduct for a period. The jurisprudence sets out that condonation may be a defence that an employee may use when an employer attempts at a later time to terminate the employee for cause based on a previous act of misconduct.<\/p>\n
If an employer learns of an act of misconduct by their employee warranting of summary dismissal then the employer should either 1) terminate the employee immediately for cause or 2) terminate the employee for cause after a reasonable time to consider its position.\u00a0 For instance, the employer may not be very clear of the set of circumstances leading up to the act of misconduct and, as such, may reasonably take some time to investigate the situation in order to gain a full grasp of what happened and its effects.\u00a0 The employer risks that the employee\u2019s misconduct will be held to be condoned if the employer fails to either terminate the employee immediately or take a reasonable time to consider its position and then terminate the employee.<\/p>\n
Employers also should be aware that if they are not confident in their decision to terminate for cause that the employer has the ability (and often times the legal requirement) to provide a few warnings to the employee as an alternative. A few warnings to an employee should state that the employee\u2019s misconduct is not acceptable and if the employee does not stop the behaviour that it could then result in termination for cause or further discipline.\u00a0 It is important to note that employers often find that providing a warning can be a bit difficult.\u00a0 This is because the warning to the employee must be carefully prepared in order to avoid any ambiguity.\u00a0 For instance, the warning should be clear with the misconduct fully stated and any prescribed discipline adequately described.<\/p>\n
Another way in which an employer may condone the employee\u2019s bad behaviour is providing the employee with a raise.\u00a0 The employee is entitled to assume that the employer is content with their behaviour if they are in receipt of a pay raise from the employer unless the employer is very clear that the pay increase does not relate in any way to the employee\u2019s behavior.<\/p>\n
The employer should not provide any commendation or risk condonation of the employee\u2019s behaviour.\u00a0 For instance, the employer should not provide the employee with any positive (even neutral) performance reviews.<\/p>\n
Sometimes the employer may wish to \u201csmooth things over\u201d with a to-be terminated for cause employee by offering to provide a reference letter to potential new employees.\u00a0 This would be a mistake.\u00a0 There has been jurisprudence to suggest that the providing such a letter or even offering to provide such a letter may be enough to prevent an employer from claiming just cause upon termination of the employee for misconduct.<\/p>\n
So condonation boils down to these points:<\/p>\n
Employers do not have to provide notice of termination or pay in lieu thereof if there was \u201cjust cause\u201d to terminate the employee.\u00a0 Just cause exists if the employee has committed a serious act of misconduct such as an act of insubordination or incompetence. So what happens when an employer does not do anything about […]<\/p>\n","protected":false},"author":4,"featured_media":1802,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[35],"tags":[],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"https:\/\/www.zeilikmanlaw.com\/wp-content\/uploads\/2021\/06\/Condonation.jpg","_links":{"self":[{"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/posts\/1663"}],"collection":[{"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/comments?post=1663"}],"version-history":[{"count":0,"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/posts\/1663\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/media\/1802"}],"wp:attachment":[{"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/media?parent=1663"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/categories?post=1663"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/tags?post=1663"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}