Canadian Employment Law Today

February 10, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Answer: In seeking to hire employees who are qualified and motivated, employers will want to consider whether their recruitment practices have the effect of inducing people from leav - ing a secure position of employment. Where an employee is induced away from secure em- ployment and then subsequently terminated from that new employment without cause, it may lead to an increased entitlement to pay in lieu of notice at common law. Where possible, an employer may want to avoid or limit their use of head hunting as a recruitment strategy as this is the most obvi - ous example of an employer intervening in an individual's prior employment. Inducement will often arise in circumstances where the employer has initiated contact with the indi - vidual they hire and made promises of secure employment so as to entice them to accept em- ployment with their organization. If head hunting is determined to be the best recruitment strategy in the circumstances, a prudent employer will likely want to consider constructing an employment contract that sets out a specified formula for calculating dam - ages in the event the employee is dismissed. Otherwise, inducement may be an important factor a court will consider in calculating the quantum of reasonable notice and may lead to a greater damages award. Answer: An improper manner of dismissal can extend the length of reasonable notice where it breaches the employer's obligation of good faith and fair dealing. Generally speaking, there is no greater risk in dismissing a remote worker without any in-person contact, particu - larly in the context of the COVID-19 pandemic where many workers are operating remotely and where communicating virtually is often the preferred and safest option for employers and workers alike. Outside the COVID-19 pan - demic, there is nothing offside in dismissing a worker remotely where there are no existing plans to travel to the area and where commu- nication is typically conducted remotely. Con- text is always important. In today's reality of the COVID-19 pan- demic, there are risks both to conducting a ter- mination remotely or in person. A dismissed employee may take umbrage with either an in-person or video conference termination. In- person may be viewed as unnecessarily risky given social distancing rules and video confer- encing may be perceived as impersonal. To mit- igate any risks of dismissing a worker by video conferencing or telephone, it is important to have two members of management present during the dismissal so that the conduct of the dismissal is witnessed. Although not required, employers may also wish to consider offering the worker termination support services or counselling in the context of without-cause terminations. Finally, the employer will need to consider how to retrieve its property such as keys or other equipment in the worker's pos - session. It may be advisable for employers to arrange a courier to collect this property short- ly after the dismissal and to communicate this to the worker before concluding the meeting. Amy Gibson is an associate with MLT Aikins in Saskatoon, practising general labour and em- ployment law. She can be reached at (306) 956- 6994 or agibson@mltaikins.com. Have a question for our experts? Email jeffrey.smith@keymedia.com Ask an Expert MLT AIKINS, SASKATOON with Amy Gibson Avoiding inducement during recruitment Question: When recruiting new employees, how can an employer make sure it doesn't induce people from leaving their existing job? Canadian HR Reporter, 2021 2 | | February 10, 2021 February 10, 2021 Dismissing a remote worker remotely Question: What are the risks and suggestions for dismissing a remote worker without any in-person contact? Does it matter if it's with or without cause? CREDIT: PEOPLEIMAGES iSTOCK Head hunting is the most obvious example of an employer intervening in an individual's prior employment. There are risks to both conducting a termination remotely or in person.

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