Failure to Launch or Failure to Instruct – Training in the Era of COVID-19
Over the past few months, I have seen an increasing number of cases where employees have been moved into new positions. Although there has been considerable discussion regarding the risks of constructive dismissal when this occurs, there has been less discussion on the need to provide proper training.
Where a skilled employee is hired, there is generally a promise on the part of the employee that they are reasonably competent. Of course, this is fact specific and depends on the nature of the job and the terms of the contract at the time of hiring. In some cases, initial training and instruction will be required.
Likewise, where an employer transfers an employee to a new area where their skills are unsuitable, it may be necessary to provide further training.
For example, if a senior employee is promoted, there may be positive obligation on the part of the employer to train that individual for their new position. If the employer fails to provide training, they may find that they have promoted that individual at their own risk and are now unable to terminate for cause and/or demote them.
I have also recently encountered cases where issues with training employees have arisen due to COVID-19. In one example, an employee was hired into a new position shortly before Ontario entered its state of emergency. As a result of the pandemic, the employee did not receive the same training and education normally provided by the employer. The employee proceeded to make a series of financially costly errors on the job.
The question which arose was – can the employer terminate for cause?
Under these circumstances, it is difficult to see how the employee’s conduct would amount to serious misconduct, conduct incompatible with their duties, or would otherwise give rise to the right to terminate for cause. The employee did not receive the company’s standard onboarding which would have addressed this issue.
Can the employer require the employee to undertake training?
There is authority for the proposition that an employee could be required to attend further training to upgrade their skills or face termination. Forcing an employee to undertake training to improve their performance does not constitute constructive dismissal where reasonable and necessary.
What are the takeaways for employers and employees?
Neither party’s rights nor responsibilities have changed with COVID-19. If an employee requires training, this may be provided by way of videoconference or alternative methods of instruction. In some cases, one-on-one training may be required and safely provided using physical distancing or other strategies to reduce the risk of transmitting COVID-19.
The fact that an employee is working from home, or that personnel have been reassigned because of the pandemic, does not eliminate an employer’s responsibility to provide training where necessary (especially where workplace safety is concerned).
On the other hand, employees should be mindful of their implied promise to be reasonably competent. Employees who “oversell” their qualifications may find that there are fewer opportunities for on the job training depending on their industry. This may not be time to “fake it ‘till you make it.”