Generally, employers do not have to pay severance pay or provide a notice period to the employees if they are being terminated for “just cause”. This includes insubordination or incompetence which is considered a serious act of misconduct in an organization.
Contrary to this, what would happen if the employer has forgiven the act of misconduct by the employee and failed to terminate them? In employment law, condonation occurs when the employer has condoned the behavior of an employee that would otherwise be the cause for termination. This generally occurs when the employer fails to act in a swift manner or it could also mean that maybe the employer didn’t feel that the act warranted immediate termination. In either case, it simply means that the employer allowed it and chose to ignore it for a period.
However, later when the employer decides to terminate the employee based on the previous act of misconduct then the employee in question could use condonation as a defense argument. For certain behaviors, in some legal jurisdictions, it could prevent the accuser from prevailing.
Whenever the employer comes across an act of misconduct by one of their employees that warrant a dismissal, then he must go with either of the following options:
- Immediate termination for just cause
- Termination after some amount of time after the employer has had the reasonable time to consider its position.
The second option is advised in situations where the employer feels there’s some grey area about whether the certain act would warrant termination or not. Then the employer could take some time to investigate the matter and reason the case then conclude his decision about the termination. The employer must also consider the end result of the situation along with its effects. In any situation, if the employer fails to terminate the employee, then he risks that the misconduct will be held to be condoned.
Also, even after taking some time for consideration, the employer is not sure if the act of misconduct by an employee warrants a termination or not then the employer also has the option to provide the employee with a few warnings and in some cases, it is also the legal requirement. The warnings given by the employer should clearly mention that the employer does not support or ignore the employee’s misconduct and if something like this occurs in the future then he will have all the right to terminate the employee for just cause.
It is highly recommended for the employer to seek legal protection from De Bousquet Law Firm in Hamilton while giving a warning to the employee as it will also help them be carefully prepared and avoid any ambiguity.
Condonation can also occur when after such misconduct, the employer offers a raise to the employee. In such a situation, the employee is entitled to assume that the employer is supporting this bad behavior unless the employer mentions clearly that the provided raise has nothing to do with the behavior of the employee.
However, in either case, the employer still risks condonation of the bad behavior and hence should avoid giving a reward of any kind after such misconduct. This also includes any positive reviews on their performance.
It has been observed that sometimes, at the time of terminating the employees for misconduct, employers offer them a reference letter in order to smooth things over. But this could be one of the biggest mistakes that the employee could make that could backfire in court. Such kind of letter would be enough for the employer to prevent him from claiming just cause in the employee’s case.
To summarize, below we have explained condonation in brief:
- Employer should be able to terminate the employee after an act of misconduct or he can also take some reasonable time to think upon his decision them dismiss him for just cause.
- Employer can also choose to provide the employee in question with a few legal warnings that mention that he doesn’t support or ignore such bad behavior.
- Employer should refrain from providing the employee with any kind of positive reinforcement such as performance reviews, pay increase, bonus, reference letter, etc. as they directly lead to the act of condonation.