Can an employee be disciplined and later fired for the same conduct?
The short answer is no.
The courts have generally found that an employer may discipline an employee only once for the same offence. “Discipline” includes warnings, suspension and even termination. Similarly, an employer cannot revoke whatever form of discipline it has handed down and substitute a harsher consequence. (The legal principle underlying this rule is akin to “double jeopardy”, a well-known criminal law concept.) In either of these situations, the employee could make a claim against the employer for wrongful dismissal.
One caveat: An employer can rely on an employee’s past conduct to make a “cumulative just cause” argument, i.e. several incidents of bad behavior over a period of time led the employer to fire the employee for cause. To do so, there must be more than one instance of blameworthy conduct and the employer must have followed a process of “progressive discipline” – a series of disciplinary actions designed to correct the employee’s behavior (e.g. a verbal warning, a written warning and eventually dismissal). Again, the original offending conduct cannot be the sole reason for termination or this will likely amount to wrongful dismissal.
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