Canadian Employment Law Today

CELT May 1 2013:celt 467.qxd 13-04-29 10:43 AM Page 8 May 1, 2013 Employees who cause trouble after being fired are rare ...continued from page 1 dures, such as escorting the terminated individual out of the workplace, with an innuendo that could give rise to the mental suffering alleged by (Brownson) particular to the circumstances of the termination rather than the fact of being terminated," said the judge. Lessons for employers It seems likely Honda's investigatory findings led to concerns about Brownson's conduct and the termination was not a total coincidence. Honda may have also assumed that by offering a severance package and not claiming just cause, it was taking the high road. If Brownson turned down the offer, a resolution of their differences would involve minimal controversy. Further, in the continuum of potential bad faith conduct on the part of an employer — which can range up to false accusations of criminal conduct and arrest by the police — having Brownson escorted out may have seemed fairly innocuous. In fact Honda may ultimately prove to have acted in a reasonable manner. The case is far from over and continues to wind its way to trial. Still, the recent trend suggests escorting out a dismissed employee carries ASK AN EXPERT ...continued from page 2 The employee may still feel the demotion was undeserved and may resign, claiming constructive dismissal. And, as with most employment matters, the ultimate determination of whether there was a constructive dismissal will be based on the particular facts. In Carscallen v. FRI Corp., the employer indefinitely suspended and subsequently demoted the employee, moved her from an office to a cubicle, stripped her of her title and eliminated her access to a flex hours program. In response to a claim of constructive dismissal, the court held that the discipline 8 with it an increased risk of a claim of bad faith conduct against an employer. While there will always be occasions where escorting out an employee is appropriate, a safer course for employers is to evaluate the need to do so an individualized basis. To this end, keep in mind once an employee has been informed of termination, it is rare for that employee to attempt to make trouble, and most employees will be eager to leave the premises on their own. That said, when choosing to carry out a termination of employment, there is a range of approaches for consideration: • Often an employer has the option of meeting an employee outside regular office hours to conduct a termination. If an employee is escorted out, there will be no witnesses and little reason to complain. • If a workplace operates 24-7, consider whether there is a location at which termination and departure can take place out of the view of other employees. • If there is simply no part of the workplace at which a termination can be discreetly effected, consider meeting the employee somewhere off-site. • Where none of the above possibilities is available, consider the degree to which it is necessary to closely accompany an employee out the door. One option may be to maintain a reasonably discreet dis- tance as an ex-employee leaves the workplace. Further, if an employer has already taken the precaution of cutting off an employee's electronic access to company property, and keys and a security pass have been surrendered, it is less likely the employee will pose a security risk or require close supervision. •Offering outplacement counselling at the time of termination is advisable as a means of support to the employee, as well as indirect supervision as she leaves the premises. In all cases, establishing and adhering to a termination protocol can help mitigate the risk of a disgruntled former employee launching a claim of expensive, time-consuming side-issues. See Brownson v. Honda of Canada Mfg., 2013 CarswellOnt 1232 (Ont. S.C.J.). was not in keeping with the company's established discipline policy. Rather, it was meant to humiliate the employee. Further, there was no provision in the employment contract which allowed for suspension. Even though the court recognized if an employer has just cause to dismiss an employee, it may substitute a suspension, the court found the suspension in this case was not justified. Presumably, the same principles would apply to a demotion. If the underlying reason for the demotion is the employee committed an act for which the employer would have been justified in terminating her, the lesser of the two sanctions should be justifiable. Corp. of Canada, 1949 CarswellOnt 402 (Ont. Arb.). ■N.B.U.P.P.E. v. New Brunswick (Department of Public Safety), 2011 CarswellNB 549 (N.B. P.S.L.R.B.). ■Kieran v. Ingram Micro Inc., 2004 CarswellOnt 3117 (Ont. C.A.). ■Reid v Stratford General Hospital, 2007 CarswellOnt 8645 (Ont. S.C.J.). ■Tolman v. Gearmatic Co., 1986 CarswellBC 737 (B.C. C.A.). ■McKinley v. BC Tel, 2001 CarswellBC 1335 (S.C.C.). ■Carscallen v. FRI Corp., 2005 CarswellOnt 2394 (Ont. S.C.J.). CELT For more information see: ■U.E., Local 512 v. Anchor Cap & Closure CELT ABOUT THE AUTHOR Tom Gorsky Tom Gorsky is a lawyer with Sherrard Kuzz LLP, a management-side employment and labour law firm in Toronto. Tom can be reached at (416) 603-0700 (Main), (416) 420-0738 (24 Hour) or by visitingwww. sherrardkuzz.com. Brian Johnston is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@smss.com. Published by Canadian HR Reporter, a Thomson Reuters business 2013

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