Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2018 December 5, 2018 | Canadian Employment Law Today CREDIT: GEARSTD/SHUTTERSTOCK state of the organization, inefficiencies or dissatisfaction with the employee's performance are all common reasons. Unfortunately, except in specific, lim- ited circumstances, none of these will justify dismissal for cause. Onus on employer e reality is that the onus to prove just cause rests with the employer. ey need to take several mitigating factors into account before any dismissal deci- sion is reached: • e employee's performance in a new position relative to their total service (when applicable) • Employer contribution to the circum- stances • Any provocation or mistreatment by the employer • Difficulty or stress experienced by the employee in the workplace • e employee's intent to harm (or lack thereof ) • An employee's admission of fault • e employee's rehabilitated attitude • e employee's mental state and health • Whether the employer has investi- gated the allegations in good faith. Organizations that design effective and enforceable employment contracts and employee policies can mitigate em- ployment law risk and minimize legal costs with properly drafted termination clauses which generally state that the em- ployer has the right to end the employ- ment relationship for cause as recognized by law. Doing so can provide an effective employment escape hatch that limits ter- mination payments to employment stan- dards minimums — in the absence of jus- tifiable wilful misconduct, disobedience, or wilful neglect of duty that would justify a for-cause dismissal without a minimum employment standards payout. Even so, employers should be pre- pared to embrace several key best practices. at means actively enforc- ing workplace policies, while ensuring progressive discipline and meticulous record-keeping when incidents occur. Investigations into misconduct that may lead to a decision to terminate employ- ment for cause must not be prejudged and must include objective interviews with key witnesses, allegations must be provided to the affected parties in advance and those individuals must be afforded ample time to draft a response. If wrongdoing is proven, punishment must be proportionate to the offence. Any decision to proceed with a just- cause dismissal must be objective. An employer's responsibilities don't end there. Termination clauses may determine what an employee is owed upon dismissal, but employers also have an obligation to treat outgoing workers appropriately. Slandering the individual or harming their reputation could ex- pose the organization to punitive bad- faith damages over and above termina- tion notice requirements. A lower-risk option in some circum- stances is to terminate an employment relationship without cause and poten- tially avoid a protracted investigation that could harm the organization's pro- ductivity and workplace culture. Further, paying the outgoing employ- ee something more than the employee's entitlement on termination of employ- ment to secure a release from further liability or legal action can be an effec- tive strategy to sever the employment relationship quickly and cleanly. For se- nior managers or executives, that could mean paying the equivalent of several weeks' or months' salary more than they may be entitled to, but many orga- nizations will see it as a worthwhile ex- change of value to protect their brand, particularly in the event of a high-pro- file case of sexual harassment. In the end, employers are wise to view just-cause termination not as a tool to be wielded indiscriminately, but as a pro- cess to be undertaken with meticulous care, sparingly, and with a strategic con- sideration of all relevant circumstances. Countless organizations have learned the hard way that tackling that process with haste and hubris can be costly and lead to damaging legal and reputational repercussions — all of which are avoid- able with a proactive approach. ABOUT THE AUTHOR Aleksandra Pressey is a lawyer at Williams HR Law in Markham, Ont., where she practices in all areas of management- side labour, employment, and human rights law. She can be reached at (905) 205-0496 ext. 228.

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