from hiring to firing
TRANSCRIPT
Next Steps Employment Centre - Vaughan
February 11, 2015
Presented by
Stuart E. Rudner
Employment Law 101:
From Hiring to Firing
Common Myths
Every employee has a probation period during which they can be dismissed without notice or cause.
Unless a contract states otherwise, employees are only entitled to the Employment Standards Act minimum amounts of notice / severance
Termination clauses are not enforceable
Only the most recent period of employment counts when calculating entitlement to severance pay
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How Much Notice / Severance?
You have to give a dismissed worker a “package”
The common law requires one month of notice for every year of service.
Pay in lieu of notice of dismissal includes base salary only.
An employer can discount the amount of notice of dismissal required if the employee’s conduct or performance was not up to par
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The Legal Cornerstones
Employment Standards Legislation
The Common Law
Contract
Policies
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Employment Agreements
Use them!
Do it properly
– Before there’s already an agreement
– With consideration
– Explained and understood
– Independent legal advice
Employment Agreements
Basic Checklist:
– Duties (maintain flexibility)
– Remuneration and benefits (maintain flexibility)
– Restrictive Covenants
– Vacation
– Termination
– Probation
– No conflicting obligations
Employment Agreements
Basic Checklist (cont’d):
– Hours of work
– Vacation / holidays
– Acceptance of policies
– Conflict of interest
– Expenses
– Social Media
Temporary lay offs: Do employers have the right due to a
shortage of work? Recent decision appears to give employers facing financial difficulties more
flexibility Employee had been temporarily laid off and claimed to have been constructively
dismissed However, the court wrote as follows:
"In my view, there is no room remaining at law for a common law claim for a finding of constructive dismissal in circumstances where a temporary layoff has been rolled out in accordance with the terms of the ESA.”
In this case, the layoff did not comply with the terms of the Employment Standards Act; for that reason, the layoff was found to be a constructive dismissal
However, if it had complied, then based upon the wording above, the court would have concluded differently
The case has not been followed
Trites v. Renin Corp., 2013 ONSC 2715
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Dismissals
2 types: With cause or without cause
If with cause, no further obligation to employee
Otherwise, need to assess employee’s entitlements to notice/pay in lieu/severance
No “near cause”
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Without Just Cause
Notice of Dismissal or Pay in Lieu
Two sources of entitlement
– Employment Standards Act / Canada Labour Code
– Common Law
Can contract out of common law
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Common Law: The Length of Notice
Requirement: “reasonable” notice of dismissal
The Bardal Factors
1) Length of service
2) Age
3) Position / Character of Employment
4) Availability of Similar Employment
What is “reasonable”?
No “rule of thumb” or direct 1:1 relationship between years of service and months of reasonable notice
Beware the short-term employee
Inducement
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The Changing Times
End of mandatory retirement, people working longer --> Wrongful dismissal claims by workers in 70s and 80s!
Recent decision:
I do not think there is a place in this social reality for an automatic presumption that persons should or would naturally retire on reaching senior age.
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The Changing Times
Di Tomaso v. Crown Metal Packaging Canada LP:
there is recent jurisprudence suggesting that, if anything, (position/character of
employment) is today a factor of declining relative importance.
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Without Cause: Options
Working notice
– must allow opportunity tolook for new employment
Salary & benefit continuance
Lump-sum
Combination
Dangers of failing to continue benefits
Termination Clause: Benefits
Employer sought to enforce termination clause
Termination clause provided for pay in lieu of notice of termination, but did not provide for continuation of benefits
Although the employer did, in fact, continue employee’s benefits during notice period, by failing to require it, the contract provided for less than the ESA and was therefore unenforceable.
As a result, common law requirement of reasonable notice applied:
Stevens v. Sifton Properties Ltd., 2012 ONSC 5508
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For Just Cause
Capital Punishment of Employment Law
Employer must prove:
1. that the alleged misconduct took place, and
2. that the nature or degree of misconduct warranted dismissal, bearing in mind all relevant circumstances
Proportionality is guiding principle – “punishment must fit the crime”
The Contextual Approach
Employer must consider all circumstances, not just alleged misconduct
– Length of service
– Disciplinary history
– Nature of position
Same set of facts can yield different results
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Performance Issues
Employer must:
Set a clear, reasonable standard
Communicate expectations
Measure the performance
Take appropriate action
– Warnings (verbal and written) – document everything!
– Counseling
– Training
Allow reasonable time for improvement
Off-Duty Conduct
Generally, what you do on your time is your business
Unless– The conduct renders the employee unable to perform his
duties satisfactorily.
– The conduct interferes with the efficient management of the operation or workforce.
– The conduct leads to a refusal or reluctance of other employees to work with him.
– The conduct harms the general reputation of the Employer, its product or its employees.
The high cost of rushing to judgment
No matter how digusting the conduct, employers must take time to objectively investigate before taking action.
In Ludchen v. Stelcrete Industries Ltd.,the employee was accused of calling his bosses “cheap f---ing Jews.” Not surprisingly, he was summarily dismissed.
However, a judge found the evidence of the alleged wrongdoing was weak and could not justify dismissal for cause, the capital punishment of employment law.
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Employers may be able to rely upon after-acquired cause
The Alberta Provincial Court considered such a situation in Gillespie v. 1200333 Alberta Ltd, where allegations were made that after being dismissed, the employee took confidential information, contrary to well-known policies.
The court took that misconduct into account even though it was a direct response to the dismissal itself.
However, after-acquired cause should be “scrutinized carefully as to its accuracy” and the “subject to strict proof”, according to the British Columbia Supreme Court in Kirby v. Amalgamated Income Ltd. Partnership, a 2009 decision.
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Termination Clauses
Enforceable if done properly
Avoid uncertainty of “reasonable notice” & reduce dismissal costs
Use clear language
Don’t go below employment standards
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The Hiring Process
Human Rights Code applies to every stage
– Posting / Advertising
– Applications
– Interviews
– Decision
– Offer
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Human Rights Code
Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of…
You don’t want to know more than you need to
A speck of discrimination can lead to a human rights claim
In the recent British Columbia Human Rights Tribunal decision in Price v. Top Line Roofing, the allegation was that the complainant was dismissed due to his age.
The employer put forward evidence to demonstrate that there were legitimate performance reasons for the decision to dismiss, which was not accepted.
The “straw that broke the camel’s back” was when the employee took an unauthorized day off to observe a religious holiday and was promptly fired. Since that was clearly a part of the reason for the dismissal, the employer was found to be in breach of the human rights legislation
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Social Media in The Hiring Process
Dealing with publicly available information online
Courts recognizing Facebook and similar postings not necessarily “private”
Don’t demand access or password
Caution
Risk of inaccurate information
Take everything with a grain of salt
Risk of stumbling on inappropriate information
– Race
– Age
– Disability
Mitigating Risks
Have protocol for every applicant
Screen candidates in consistent manner
Have non-decision maker filter out inappropriate info
Log reasons for not hiring
AODA & Accommodation
Positive duty to accommodate in hiring process
Must advise applicants will accommodate
Must proactively inquire
Must accommodate if requested
Applies to posting, websites, access to interview space, etc.
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Accommodation
Duty to accommodate to point of “undue hardship”
Employees do not have to reveal need for accommodation in application process
– Not “dishonest” or cause for dismissal
Separate accommodation from hiring decision if possible
Accommodation
Process is to be 2 (or 3) way dialogue
Employee must produce appropriate medical documentation
Not entitled to preferred form of accommodation
Must show appropriate efforts to consider potential accommodations
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Employer’s duty to accommodate: Family Status
Childcare needs can trigger the duty to accommodate an employee’s family status
Can require rearranging shifts / work hours Must be legitimate need – doesn’t mean all parents can choose
hours Onus on employee to show need Employers cannot dismiss requests for accommodation out of hand Will apply to elder care, similar needs as well For any accommodation request
onus is on employees to provide detailed information Employees are not entitled to dictate their preferred form of
accommodation The employer can assess all options and determine if any are
viable.
Canada v. Johnstone, 2013 FC 113
Policies to Protect the Employer
Implementing Policies
A. Have a policy
B. Use clear and unambiguous language
C. Keep the policy up to date
D. Publicize the policy
E. Make employees aware of concerns
F. Ensure supervisors and managers are aware of the policy and how to monitor
G. Monitor behaviour
H. Discipline violators
Policies - Best Practices
Avoid zero tolerance
Avoid condonation
Teach / train / remind
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The Importance of the Investigation
Investigate first
Ensure fairness, objectivity, thoroughness
Give opportunity to respond
Often, employee response is critical factor in determining appropriate discipline
Vernon v. British Columbia
30 year employee accused of bullying/harassment
Known as “The Little General”
Offensive language, racial and other inappropriate comments
Investigators:– Pre-judged
– Attacked accused and those who supported her
– Misled decision-makers in report
Result– 18 months’ notice
– $35k in “The Damages Formerly Known as Wallace”
– $50k punitive damages
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Responding to allegations
Do not ignore
Act expeditiously
Check policy
– Requirements for investigation / timing / people involved
Review policy now to ensure not overly restrictive
Consider other obligations (ie. union)
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Hallmarks of Good Investigation
Unbiased
Thorough
Timely
Well documented
Sound conclusion
Action items
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Conducting investigation
Internal vs external
– Seriousness of allegations
– Sensitivity of issues
– Appearance of bias
– Expertise
– Availability
– Cost
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Conducting investigation
Obtain all necessary information from complainant
Do not begin with a conclusion or investigate for purpose of proving misconduct
Do not make promises of confidentiality you cannot keep
– But promise reasonable efforts
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Preparing a Report
Background / allegations
Mandate
Process
Documents
Witnesses
Policies
Evidence
Conclusions
Recommendation? 44
Report
Assess credibility
Compare to evidence
What has “air of reality”?
Don’t cop out – reach a conclusion
Ensure it is supportable
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After the Report
Advise complainant and respondent of outcome
Take action based upon findings
– Discipline
– Mediation
– Training / counselling / courses
– Apology
– New policies / training for others
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Can you package someone out instead of investigating
misconduct? Investigations becoming more important Recent decision suggests employers may not be entitled to
terminate without cause in order to 'side-step' the duty to investigate
Ontario Superior Court of Justice:“it is a triable issue whether the employer adopted the procedure intentionally to side step the criteria for fair treatment of an employee against whom cause is alleged”
When an employee is alleged to have engaged in misconduct, employers are expected to investigate before taking disciplinary action
Brownson v. Honda Canada Mfg., 2013 ONSC 896
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Stuart E. Rudner
Toronto: 416-640-6402Markham: 905-530-2484
www.rudnermacdonald.com
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