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

srudner@rudnermacdonald.com

Toronto: 416-640-6402Markham: 905-530-2484

www.rudnermacdonald.com

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