Employer's Duty To Warn

The common law has evolved to include a duty to warn before terminating an employee for cause. Where an employee's conduct is inconsistent with employment duties, the employer typically has a duty to provide the employee with a warning and a reasonable opportunity to improve before resorting to dismissal. Generally, the greater the wrong, the less likely it will be that an employer will have a duty to warn. The requirement to warn an employee may not apply at all where serious misconduct is involved.

Where there is repeated misconduct, employers should be weary of the legal concept of condonation. "Condonation" is a principle recognized by case law that provides that where an employer has knowledge of misconduct amounting to just cause for dismissal but continues to employ the employee for a considerable time, the employer cannot rely on the same conduct to justify dismissal.

Generally, an employer has two options when it becomes aware of misconduct sufficient to justify summary dismissal:

• to dismiss the employee; or

• to overlook the misconduct.

If the employer retains the employee for any considerable time after discovering the misconduct, that may amount to condonation, and the employer cannot afterwards dismiss for that misconduct without any new conduct justifying termination for cause. While intention to condone by the employer is necessary, the court may draw inferences based on the circumstances of the employer's conduct, especially delay by the employer.

By using progressive discipline, an employer can try to correct most employee problems at an early stage, which is beneficial for both the employer and the employee. Even if an employer does not have a written progressive discipline policy, it is best practice for employers to utilize progressive discipline before resorting to summary dismissal.

"Progressive Discipline" may include a number of steps that will normally be followed for most disciplinary problems, for example:

• verbal warning for first offence;

• written warning;

• suspension; and

• termination of employment for cause.