Our clients often tell us some version of this:
“The issues were obvious. We’d talked to the employee multiple times. They knew there was a problem.”
Unfortunately, courts don’t decide cases based on what felt obvious at the time. They decide them based on process, proof, and fairness.
A recent B.C. court decision is a textbook example of how failing to follow the progressive discipline process can turn what feels like a justified termination into a wrongful dismissal.
What Happened
In Rooke Construction Inc. v. Jourdain, the employer terminated a site superintendent for what it viewed as serious and ongoing performance and conduct issues. The company believed the problems were severe enough to justify termination for cause, meaning no severance.
The employee disagreed and brought a wrongful dismissal claim.
The court sided with the employee, and not because the employer’s concerns weren’t justified, but because the employer skipped the steps courts expect to see before alleging cause for dismissal.
What Went Wrong Here
This wasn’t a case where the employer fabricated issues after the fact.
The judge accepted that:
- There were concerns about the employee’s performance
- There were discussions about missed expectations
- The employer genuinely believed the situation was harming the business
So where did things go wrong?
The Missing Piece: Progressive Discipline
The court’s decision turned on one central issue: process.
The judge found that the employer:
- Did not provide clear written warnings
- Did not follow a progressive discipline process
- Did not clearly communicate that the employee’s job was at risk
- Lacked proper documentation showing the employee had been provided a fair chance to improve
In other words, the employee may have known there were issues, but the court was not convinced he understood that his job was on the line.
And that distinction matters.
The judge was clear: “this is precisely why we have progressive procedural rules and a series of progressive disciplinary measures in place.”
Progressive discipline removes doubt or ambiguity about expectations and consequences. Without it, cause for dismissal is very difficult to prove.
What is Progressive Discipline?
Progressive discipline is a structured approach employers are expected to use for performance issues or non-egregious misconduct.
It typically includes:
- Clear communication of expectations
- Verbal and written warnings
- Documentation of concerns
- A reasonable opportunity for the employee to improve
- Escalating consequences if issues continue
The purpose isn’t to delay termination at all costs. It’s to ensure there’s no ambiguity about expectations or what may happen if problems persist.
Why Courts Care So Much About Progressive Discipline?
In British Columbia (and across Canada), just cause is treated as the most severe employment outcome. Courts regularly describe it as the “capital punishment” of employment law.
That means the bar to prove just cause is high.
For ongoing performance issues or non-egregious misconduct, courts generally expect employers to show:
- Clear expectations and rules
- Warnings that escalate over time
- A reasonable chance for the employee to improve
- Documentation showing those steps actually happened
Progressive discipline isn’t about being “soft.” It’s about being clear, fair, and having a defensible process.
The Decision
“Had they done this, cause likely would have been established”
One of the most striking parts of this decision is what the judge said after rejecting the employer’s just cause argument.
The court noted that had proper procedures been followed, just cause likely could have been proven.
Instead, because the employer skipped formal warnings and documentation, the court refused to find cause and treated the termination as without cause.
That meant severance was owed.
The financial outcome
Based on the employment contract (which required eight weeks’ notice if the employee resigned), the court applied the same standard to the employer and awarded eight weeks’ severance, totaling $13,076.96.
No aggravated or punitive damages were ordered, but the employer still lost the ability to rely on cause, entirely due to the lack of progressive discipline.
Key Lessons for Employers
Verbal Conversations Are Not Progressive Discipline
This case highlights a common (and risky) assumption:
“We talked about it, so that should count.”
Why It Matters:
- Verbal conversations are easy to dispute
- Memories differ
- Courts want to see paper trails, not just intentions
Progressive Discipline Exists to Remove Ambiguity
If an employee can credibly say they didn’t realize their job was at risk, just cause is unlikely to succeed — even where performance issues are real.
Why This Matters:
- It makes expectations unmistakably clear
- It gives employees a fair chance to correct issues
- It creates documentation that stands up months, or years, later in court
Performance Issues Still Require Process
Unless misconduct is extreme, courts expect warnings, documentation, and a chance to improve before termination for cause.
Documentation Can Make or Break a Cause Argument
The absence of written records and follow-up was the deciding factor in this case. Good documentation protects employers months or years later.
Courts Are Procedural, Not Punitive
The employer was not found to have acted in bad faith. Still, failing to follow proper discipline was enough to lose the ability to rely on cause for the termination.
Employment Contracts Cut Both Ways
Notice obligations may be applied reciprocally. If cause fails, contractual notice provisions can directly drive severance exposure.
Again, this decision isn’t about being lenient or tolerating poor performance. It’s about being clear, consistent, and having a defensible process.
Progressive discipline isn’t a technicality, it’s often the difference between a lawful termination for cause and a wrongful dismissal finding.
Citation: 2025 BCPC 237 (CanLII) | Rooke Construction Inc. v. Jourdain | CanLII
