Employment law: Does the three strikes rule really apply?

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“Three strikes and you’re out!” – It’s a rule that governs the game of baseball but does it really have any value in the workplace?  HRM asked top Toronto lawyer Howard Levitt if applying the age-old rule of thumb would be a wise legal decision.

Common misconception

“There’s no such thing as a ‘three strikes and you’re out’ rule. It’s a common misconception,” asserts Levitt.

“If someone does something very, very serious you don’t need any strikes. The first strike, you are out,” he continued.

“Similarly, if someone does something minor like – let’s assume they’re late two minutes to work or their performance isn’t fabulous but it isn’t god-awful either – then you can keep giving discipline letters every week but it will never be cause for discharge.”

Case-by-case decisions

The industry vet urged employers not to generalize when it comes to discipline – “You have to look at every single case contextually and that’s what the courts say too,” he explains.

He pointed to the Supreme Court of Canada case, McKInley v. BC Hyrdo – “It says you can’t have a particular rule of thumb for every single case but every case must be looked at individually and in context,” he revealed.

Crucial considerations

“You have to look at a whole serious of factors,” stressed Levitt, including:
  • The employee’s previous record
  • Their length of service
  • The nature of their position
  • The severity of the conduct
“Lots of companies make mistakes by applying rules of thumb such as ‘three strikes and you’re out’” warns Levitt – adding that in some circumstances, waiting until the “final” strike might be took long and employers may have inadvertently condoned the unacceptable behaviour.

Similarly, abiding by the rule of thumb may see employers dismiss someone too soon.

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