Sometimes employers have to deal with employees who are rude to other coworkers, are always late, or are spreading rumors. Bad attitudes in the workplace can have negative consequences in a business. In fact, it affects people’s morale and the productivity of a business. Employees with bad attitudes are generally difficult to handle and employers do not have the time or resources to deal with them. In an economic turndown or when the business is experiencing a slump, employers put serious thought into the make up of their staff. Generally, after an employer has exhausted all of the reasonable options to deal with an employee with bad attitude, termination becomes the next option.
Can I fire an employee with bad attitude? The short answer in most cases is yes. In Alberta, if there is no collective agreement (which has its own rules, an employer can terminate an employee at any time for any reason as long as those reasons are not prohibited according to human rights legislation. Further, employers do not even need to provide reasons. The courts have recognized that employers have the ability to determine the composition of their workplace (see for example Styles v Alberta Investment Management Corporation, 2017 ABCA 1).
While employers have the ability to terminate an employee for any reason, including bad attitude, with the exception described above, if there is no just cause or severance clause, employers need to give reasonable notice or payment in lieu of notice (Globex Foreign Exchange Corporation v. Kelcher, 2011 ABCA 240 ). To determine the reasonableness of a notice, attention should be paid to the termination provisions of the employment contract. For the termination provision to apply, they need to be clear and unambiguous. At a minimum, any reasonable notice must include the notice requirements sets out in the Alberta Employment Standard Code (see for example Anstead v. Park Royal Homes Inc., 2009 ABQB 179 p.43). If there is no employment contract, the common law provisions apply. For the purpose of this blog, it suffices to say that common law means the decision made by judges with respect to notices. At common law, the courts consider, inter alias, the length of service, age of the employee, nature of the work, education level, etc. to determine the reasonable notice applicable to a particular case.
Payment in lieu of notice depends on several factors. For example, if there is a fixed term contract, the employer must pay what the employee would have earned if the contract had been performed for such term unless there is specific provision in the contract dealing with termination. Payment in lieu of notice that has been calculated having regards to the common law tend go above and beyond the minimums set out by the Code. This is why it is particularly important that termination provisions in an employment contract are drafted clearly. It is always a good idea for an employer to retain a lawyer to revise the employment contract and obtain competent advice as to how the facts of the particular case could affect termination of an employee.