‘Real and escalating warning’ needed before termination: judge

Employers must communicate more than mere concern after problematic incidents with an employee before terminating employment based on those incidents, a recent Superior Court decision suggests. 

In the wrongful dismissal case Pascua v. Khul-Schachter involving a full-time nanny who was terminated after incidents of neglect, deputy Justice Z. Jack Prattas said expressing a concern about the first incident was not sufficient to dismiss the plaintiff at the second incident. 

In the first incident, one of the young children the plaintiff looked after took the elevator unattended. She was fired on the spot after another alleged incident in which the two children were left outside the apartment crying. 

The plaintiff denies the second incident, and believes she was terminated because she was pregnant. 

Even if the latter incident happened, the plaintiff should have been told the first incident was “unacceptable” in order to be rightfully dismissed at the second incident, the judge said.  

“In my view, the defendant should have given the plaintiff a clear-cut warning — with no ambiguity — that if a similar incident of concern were to happen again that she would be fired on the spot,” the judge said. 

“The warning has to be actually conveyed to the employee, and the employer cannot simply rely on an impression that the employee may have received it.”

The defendant, the children’s mother, should have been “unambiguous about her intentions” and given the plaintiff “real and escalating warnings,” the judge said. 

“It was not clear from the evidence whether she informed the plaintiff that the incident was unacceptable; or whether she simply expressed her concern to the plaintiff; or whether she delivered any stern warning that if a similar incident were to happen again that the plaintiff would be fired.”

The judge also said given the nanny’s two-year service to the family, the incidents described “were not enough to constitute a shattering of the confidence to the parents so as to constitute just cause.” 

The court ordered the defendant to pay nearly $7,000 — the amount the nanny would have earned within a reasonable notice period.

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