HRNC / NIANovember 21, 2013

Niagara Falls

Presented by

Stuart E. Rudner

Employment Law 101:From Hiring to Firing

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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 (or two weeks for every year, or some other absolute amount). 

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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You can’t fire someone in Canada Providing positive or negative references to

dismissed employees can result in liability.  Non-competition covenants are enforceable

against former employees.  If you are concerned about a human rights

complaint, dismissing the individual on a without cause basis will preclude a claim being brought. 

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From Hiring to Dismissal

1. Hiring Process2. During the relationship3. Dismissal

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

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

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

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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

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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

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– No conflicting obligations

Employment Agreements

Basic Checklist (cont’d):– Hours of work– Vacation / holidays– Dress code– Conflict of interest– Expenses– Social Media

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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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Termination Clauses

Address benefits

Address mitigation

Policies to Protect the Employer

Implementing PoliciesA. Have a policyB. Use clear and unambiguous languageC. Keep the policy up to dateD. Publicize the policyE. Make employees aware of concernsF. Ensure supervisors and managers are

aware of the policy and how to monitorG. Monitor behaviourH. Discipline violators

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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 service2) Age3) Position / Character of Employment4) Availability of Similar Employment

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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 to

look for new employment Salary & benefit continuance Lump-sum Combination Dangers of failing to continue

benefits

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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”

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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 standardCommunicate expectationsMeasure the performanceTake 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.

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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

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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

Plester v. Polyone Canada Inc.Flawed investigation

all notes should have been retained — most were, but some summaries were done and original notes shredded

interviews should all be done separately initial report included term “wilful

misconduct,” suggesting tunnel vision or preliminary conclusion

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initial draft substantively same as final report, suggesting decision reached without full discussion

no apparent review of similar situations or comparable outcomes

once possibility of dismissal for cause was seen as a potential outcome, Plester should have been given an opportunity to give a more complete statement

Dismissal not upheld

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Human Rights Claims

Cannot dismiss based upon protected ground

Caution when applying performance requirements

Even if tiny part of reason was protected ground despite other legitimate reasons

Potential for “general damages” plus damages for loss of income from date of dismissal to date of hearing

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Stuart E. Rudner

srudner@rudnermacdonald.com

647.255.3100www.rudnermacdonald.com

Twitter: @CanadianHRLawLinkedIn: Connect with me, join the Canadian HR Law Group and visit the

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