Canadian Employment Law Today

June 16, 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: An employer can provide an employee with working notice of termination of employ- ment and then decide that it wishes for the remainder of the notice period to be provided as pay in lieu of notice. Employers are permitted to provide working notice or pay in lieu of notice of termination of employment as is suitable for the situa - tion. The amount of notice that an employee is entitled to arises from three primary areas: the governing employment legislation, their employment agreement, and the potential common law. An employer should be sure to canvass all areas before deciding on whether notice or pay in lieu of notice of termination is appropriate. Working notice of termination may not always be appropriate in the circumstances. Important considerations for employers include whether there is a positive working relationship with the employee, if the employee is leaving employment on good terms, whether or not the employee is likely to still be productive during this time, and if there is an organizational need during the notice period for the special skills or expertise the employee possesses. While not essential, it is recommended that when providing an employee with a working notice of termination, the employer include a statement indicating that the employer reserves the right to pay out the remaining notice period rather than requiring the employee to continue working. While an employer always has the right to do so, expressly reserving the right within the written notice of termination may make a change of plans more palatable for the employee. There may be legitimate reasons for termin- ating the employment relationship earlier than planned. Poor work performance and lack of employee motivation may be sufficient reasons to terminate early. There may also be misconduct that could potentially give rise to termination with cause. It is important to assess the reasons, determining how and why it is necessary to end the relationship early. Additional practical considerations will include how to pay out the remainder of the notice period (as a salary continuation or as a lump-sum payment) and whether benefits will continue through the notice period, among others. It is important that employers assess all of these issues and seek legal advice before informing employees that pay in lieu of notice will be provided. When providing written notice of termin - ation to employees, it is also important to expressly note that if an employee decides on their own volition to not work out the notice period, they will be resigning from their employment and will receive no further payment. Where this occurs, it is recom - mended that employers follow up with the employee to confirm the resignation. Canadian HR Reporter, 2021 Answer: Employers should avoid directly singling out an older employee regarding their plans for retirement. Directly raising the ques- tion puts the employer at risk of a possible allegation of age discrimination. Instead, employers should exercise an open- door policy, encouraging employees to freely discuss their thoughts on their career advance - ment or retirement plans. Another proactive measure employers may consider is obtaining information from all employees, regardless of age, on their plans for continuing employment and career transition. It is common for leader - ship positions to have a career transition and successorship plan in place, so these inquiries could be made without any relation to the age of the employee. If the employer is considering parting ways with an employee and would like to charac- terize the termination as a retirement, then it is recommended that this be discussed with the employee directly when advising them of their termination. It is important that the employee is aware that their employment will be terminated in either event, but that if they wish for the termination to be characterized as a retirement, then the employer would be prepared to frame it in that manner. It is important to note that such discussions will always be in the context of the employer ending the employment relationship and not the employee. As a result, notice or pay in lieu of notice will need to be provided to that employee in accordance with the employee's employment agreement, governing employment legislation, and, if applicable, common law. Amy Gibson is an associate with MLT Aikins in Saskatoon, practising general labour and employ - ment law. She can be reached at (306) 956-6994 or agibson@mltaikins.com. 2 | | June 16, 2021 June 16, 2021 CREDIT: PRAETORIANPHOTO iSTOCK Ask an Expert MLT AIKINS, SASKATOON with Amy Gibson Changing working notice to pay in lieu Question: Can an employer provide an employee with working notice of termination but then change its mind midway through the notice period and pay off the rest? Have a question for our experts? Email jeffrey.smith@keymedia.com Inquiring about employee's retirement plans Question: Can an employer inquire about an older employee's retirement plans without risking an allegation of coercion or age discrimination? There may be legitimate reasons for terminating the employment relationship earlier than planned.

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