Most employers do not lose wrongful dismissal cases because they made the wrong decision. They lose because they made the right decision far too late — and with little documented evidence to justify it.

The law rarely punishes employers for firing poor performers. It punishes them for pretending they never noticed the poor performance until the day they decided to act on it.

That distinction costs Canadian businesses hundreds of millions of dollars every year.

The pattern is almost always the same. A manager complains privately that an employee is missing deadlines, ignoring instructions or producing mediocre work. Everyone around the office knows there is a problem, yet no one tells the employee in clear terms.

Nothing meaningful is committed to writing. Annual performance reviews remain positive — or at least not sufficiently negative — because confrontation is unpleasant and the manager has to keep working day to day with the employee. Management convinces itself the performance will improve or there will be another opportunity to address it.

Until finally there isn't.

The employee is dismissed. A demand letter arrives. Management suddenly remembers every failure in vivid detail. Unfortunately, memories are not evidence.

Judges are understandably skeptical of employers who discover years of poor performance only after they receive a demand letter and retain counsel. They have seen too many cases where a termination letter or response to a demand letter became an...

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