An Alberta Labour Relations Board appeal panel has upheld a decision that Arbor Tech Utility Services did not have just cause to terminate a former safety administrator.
The dispute stemmed from S.L.C.’s termination on Aug. 16, 2023. Arbor Tech argued it had just cause for termination due to alleged performance issues and insubordination. However, Vice-Chair Wassila Semaine found the employer did not meet the legal threshold to establish just cause, citing insufficient warnings and a lack of opportunity for the employee to address performance concerns.
Background
S.L.C. was hired in July 2022 and tasked with ensuring safety and compliance at the employer’s vegetation management business. Her supervisor, D.B., identified recurring performance issues, including errors in data submissions and failure to follow instructions.
Formal warnings were issued on several occasions, including a verbal warning on April 20, 2023, and a written warning on Aug. 14, 2023. However, the panel noted inconsistencies in the employer’s documentation of other warnings.
Two days after issuing the written warning, D.B. terminated S.L.C.’s employment, citing ongoing inaccuracies in her work and the cumulative impact on the business. The termination letter referenced “poor performance and insubordination.”
Legal analysis
The panel’s decision centred on the employer’s burden to prove just cause, which requires adherence to the principles set out in McKinley v. BC Tel (2001 SCC 38). This includes providing clear warnings, allowing reasonable opportunities for improvement, and establishing that the employee’s conduct fundamentally undermined the employment relationship.
Semaine found Arbor Tech’s approach to performance management deficient in several respects:
Lack of clear warnings: While S.L.C. acknowledged two warnings, the panel found these lacked explicit notice that her job was in jeopardy if issues persisted. Informal reminders during weekly meetings were deemed insufficient for establishing just cause.
Inadequate opportunity for improvement: The Aug. 14, 2023, warning did not allow S.L.C. a reasonable period to demonstrate improvement, as she was terminated only two days later.
Deficient documentation: Some alleged warnings were unsigned and undated, undermining their credibility as evidence of progressive discipline.
“Termination is the ultimate sanction in employer-employee relations, and the principles approving its use should be strictly applied,” the panel noted, referencing 732925 Alberta Ltd. v. Moore (2005 CanLII 51570).
Performance issues insufficient for just cause
The panel acknowledged the employer’s frustration with S.L.C.’s performance but emphasized that cumulative incompetence requires clear and actionable warnings, along with an opportunity for remediation.
While the employer argued her inaccuracies could have regulatory or reputational consequences, Semaine noted these risks did not absolve the employer of its legal obligations under Alberta’s Employment Standards Code (ESC).
“Even if there is little reason to believe that things would have turned around, the employee is still entitled to a final opportunity,” the panel stated, citing Motta v. Davis Wire Industries Ltd. (2019 ABQB 899).
Conclusion
The panel confirmed the Officer’s order for Arbor Tech to pay $1,025.38 to S.L.C., covering one week’s pay in lieu of notice and a $100 administrative fee, as required under sections 56 and 57 of the ESC.
For more information, see Arbor Tech Utility Services Ltd. o/a Arbortech Utility Services v Coderre, 2024 ABESAB 23 (CanLII).
