Canadian HR Reporter

August 2019 CAN

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

Issue link: https://digital.hrreporter.com/i/1147666

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CANADIAN HR REPORTER AUGUST 2019 INSIGHT 23 Being specifi c on just cause for dismissal If an employment agreement has examples of misconduct, can the employer automatically dismiss a misbehaving worker without notice? Question: If an employment agreement has specific examples of misconduct that constitute just cause for dismissal, can the employer automatically dismiss employees without notice if they are guilty of that misconduct? Answer: Just cause for summary dismissal is normally diffi cult to prove. In the 2001 case McKinley v. BC Tel, the Supreme Court of Canada described just cause as serious misconduct that gives rise to a breakdown in the em- ployment relationship. Just cause will exist where an employee's behaviour violated an essential condition of the employ- ment contract, breached the faith inherent in the work relationship or was fundamentally or directly inconsistent with the employee's obligations to the employer. In some cases, an employer may want to include language in an employment contract specify- ing certain types of misconduct that will be just cause for dismiss- al without notice or severance compensation. Clauses of this nature can be eff ective in tailor- ing an employment agreement to the particular requirements of the employer's business. Generally speaking, a court will enforce a contractual defi nition of just cause, provided the defi nition is clear and does not violate statu- tory termination restrictions, such as those found in human rights, labour relations or work- ers' compensation legislation. Care must be taken in drafting provisions of this nature, how- ever, because — as is the case with clauses that seek to limit an employee's notice or severance rights on a termination without cause — they will often be sub- jected to careful judicial scrutiny. It is important to ensure that if an employment agreement lists certain infractions that will be just cause for dismissal, the list concludes with a catch-all phrase such as "any other act or omission that would constitute just cause for dismissal at com- mon law." Otherwise, categories of serious misconduct that do not appear on the list (even theft, for example) will not be grounds for dismissal without notice or sev- erance compensation. If a contractual defi nition of just cause includes conduct by the employee that can't be mea- sured objectively, and it depends on the exercise of the employer's subjective judgment, a court will expect the employer to act fairly and in good faith in its applica- tion of the clause: See Truckers Garage Inc. v. Krell from 2003. In the 2001 case Meyer v. Partec Lavalin Inc., the Alberta Court of Appeal ruled that if the employer has exercised its dis- cretion under a provision of this nature honestly and in good faith, the court should not overturn the employer's decision on grounds of reasonableness. If an employment agreement defi nes just cause more broadly than the applicable employment standards legislation, an employ- er may be required to provide the employee with statutory no- tice or severance compensation, even though summary dismissal is p ermissible under the terms of the employment contract. In the 2018 case Khashaba v. Procom Consultants Group Ltd., the termination language in the employment agreement defi ned cause as "any grounds at com- mon law for which an employer is entitled to dismiss an employ- ee summarily without notice or compensation in lieu of notice." The Ontario Supreme Court found that this provision vio- lated the province's Employment Standards Act, 2000, which re- quires a higher standard of "wil- ful misconduct" for summary termination. However, while the court found that the defi nition of just cause in the contract was void, it rejected the employee's argument that, under the principles expressed in the 1992 case Machtinger v. HOJ Industries Ltd., this also in- validated the other termination provisions in the agreement. In ruling that the employee was limited to the severance outlined in his contract, the court cited the comments of the B.C. Court of Appeal in the 2014 case Miller v. Convergys CMG Canada Limited Partnership that "the construc- tion of an employment contract remains an exercise in contrac- tual interpretation, and the inten- tions of the parties will generally prevail, even if this detracts from employment law goals that are otherwise presumed to apply." Colin G.M. Gibson is a partner at Harris & Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com. Colin Gibson Toughest HR Question Handling divisions in the workplace Trump is stirring up a lot of feelings — and that could have implications for employers I have worked with both the Trump and Obama administrations during my career as a diversity and inclusion practitioner, so I have inside experience on how both administrations work. I have been critical of both admin- istrations for diff erent reasons. From corporations to schools, I have also worked with organiza- tions dealing with the challenges the election of the fi rst African- American president brought them — which is a discussion for another day. Today, I'd like to provide some steps employers can take during the presidency of Donald Trump to deal with challenges related to diversity. Love or hate him, we all know Trump has been called the most divisive president in recent Unit- ed States history. Whether you agree with that statement or not, one thing we cannot disagree on is that, since 2016, tensions have risen tremendously in the coun- try in the form of an increase in hate crimes (according to the FBI), an apparent increase in ten- sions between non-white com- munities and law enforcement, and increased tensions in the workplace, according to a 2017 survey by the American Psycho- logical Association. More employees are experi- encing tension because of what they are experiencing outside of work as well as on the job. So, here are three steps em- ployers can take to start to create a more productive work environment in a country that is only going to become more tense as we approach the 2020 election. Create free spaces There has been much written about the importance of orga- nizations creating safe spaces — "intended to be free of bias, conflict, criticism, or poten- tially threatening actions, ideas, or conversations," according to Merriam-Webster — but there also need to be free spaces where your employees can express themselves without being judged or developing a fear of reprisals. ere should be a department — or at the very least a represen- tative of your company — not af- fi liated with HR, where employ- ees can express themselves and their concerns about how the climate of the country (or your company) may be aff ecting their work performance. You can have employees who feel they are being targeted be- cause of their race, religion, gen- der or any other identifier for which they feel singled out. From the rich, white male in a company to the Muslim, middle- class female, anyone can feel mar- ginalized at any time. ey need spaces to speak their mind. Focus on diversity Create a diversity statement and training now before the crisis hits — and a crisis will hit. I have encountered so many employ- ees who have told me they feel tolerated and not celebrated in their organizations because their workplaces do not have a stated commitment to diversity. e idea of the diversity state- ment can indeed be controversial, but I believe it is better to have a statement than not have one. A diversity statement is a promise to everyone who walks through your doors that your company is committed to hiring the best talent, regardless of their background. To honour that promise, em- ployers must engage in regular events and training that are fo- cused on building a culturally competent workforce to dem- onstrate that actions do indeed speak louder than words. Silence is compliance As I am writing this, the hashtag #silenceiscompliance is trending in regards to frustrations with pol- iticians not speaking up on some of the issues facing the U.S. today. Whether it is the situation with the fl ag and Colin Kaepernick or environmental issues such as the eff ects of plastic straws, we live in a society where consumers want their companies to take a stand, one way or the other. Even Skittles had to issue a statement after the killing of Tray- von Martin (who was carrying the candy) by George Zimmerman in 2012. In this day and age, you do not want your company to be caught off guard by an issue that is quickly going viral. In the last year, Starbucks, Gu- cci, Macy's, Home Depot, H&M, Sephora, Burberry and so many other companies have found themselves the subject of backlash over issues such as racism, sexism and other forms of discrimina- tion. You want to make sure your company is proactive in the face of controversy, because compa- nies that are reactive tend to suff er the most criticism from the public (and stockholders, by the way). We live in a society that is on the brink of either something beautiful or disastrous. Your com- pany should not wait to respond to issues regarding diversity and inclusion. I have not yet read a study say- ing that employers that are more diverse and celebrate their diver- sity are less profi table. Compa- nies can increase their revenue by as much as 19 per cent when they embrace diversity, according to a 2018 study by the Boston Consult- ing Group. As the United States becomes more diverse and the world be- comes smaller, you owe it to em- ployees and consumers to con- tinually be ahead of the curve. As Martin Luther King stated: " e time is always right to do what is right." If your company is strong in one or two of these areas, strengthen yourself in the third. If your com- pany is shaky in all three, there is no time like the present to fi ne- tune your programs by working with experts in this area. If your company is profi cient in all three, do not get comfortable, for as U.S. author and motivation- al speaker Zig Ziglar said, you can always better your best. Omekongo Dibinga is an award-win- ning leadership, diversity and inclu- sion strategist based in Washington, D.C. Trump is stirring up a lot of feelings — and that could have implications for employers I have worked with both the Trump and Obama administrations during my career as a diversity and inclusion practitioner, so I have inside experience on how both Omekongo Dibinga I have not yet read a study saying that employers that are more diverse and celebrate that diversity are less profi table. Generally speaking, a court will enforce a contractual defi nition of just cause, provided the defi nition is clear.

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