Canadian HR Reporter

www.hrreporter.com 33 S P O N S O R E D navigating the termination of an employee requires a balanced and considered approach. Some of the initial questions an employer should consider include: • What is the reason for the termination: "just cause" or "without cause"? • What does the employee's contract say about termination? Is there a con- tractual notice provision? • What factors are specific to the employee: their age, role, tenure? • What's the impact of COVID-19? Reason In a just cause termination, it is important to ensure that the misconduct TERMINATION CONSIDERATIONS can contract out of the common law presumption that a reasonable notice period must be provided to the employee; however, doing so requires clear and unambiguous drafting. E m p l o y e r s a n d e m p l o y e e s a r e not permitted to contrac t below t h e s t a t u t o r y m i n i m u m n o t i c e periods — even if both parties agree. Termination provisions that do not comply with minimum employment standards notice will be struck down by decision-makers, rever ting the employee back to a common law notice entitlement. Contractual termination provisions should also specifically contemplate whether bonuses, discretionary com- pensation and compensation in the form of pension or RRSP contributions are payable within the reasonable notice period. Employee-specific factors The oft-cited Bardal factors are central to determining what the reasonable notice period is in any particular termination decision. There are primarily four factors: age, length of service, nature of employment (position/seniority/ role) and the availability of alternate work in the employee's industry. However, because the reasonable notice assessment is contextual, there are no hard and fast rules. Some employee-specific factors that can significantly impact the reasonable notice period include whether: • the employee was induced or recruited • the employee was very short service or very long service These factors typically lead to a significantly increased reasonable notice period and should be considered when making the decision to terminate or preparing a severance offer. The impact of COVID-19 Terminations in the time of COVID-19 involve unique considerations. One of the most obvious considerations is that alternate employment may be harder for terminated employees to find. Therefore, it may be in the employer's best interest to resolve termination disputes early on or consider offering a salary continuation instead of a lump sum amount. It will also be important for employers to be cognizant of any potential human rights issues; for example, if the decision to terminate an employee is made shortly after an employee returns from sick leave. Conclusion Asking the above questions before actioning a termination will go a long way toward limiting the cost of the termination. CHRR For more information please contact Allie at alaurent@mross.com or visit www.mross.com. PROPERLY is sufficiently serious. Typically, this means the conduct is not a one-off occurrence and that the employee knows — or ought to know — that their conduct is inappropriate and may result in loss of employment. Often, this is achieved through prior written warnings or some other form of formal discipline. If an employer determines that there is just cause, it is important that the reason for termination be clearly stated in the termination letter. This is particularly the case in Ontario where the Employment Standards Act, 2000 regulation has specified that employees are not entitled to notice of termination only if they are "guilty of willful misconduct, disobedience or willful neglect of duty that is not trivial and has not been condoned by the employer." If an employee is being terminated without cause, then the employer must provide (working) notice or pay in lieu of notice. Typically, depending on the reason for termination, pay in lieu of notice is the preferred approach. However, if an employer is shutting down operations, advance working notice may be appropriate. Employment contracts Before actioning a termination, it is prudent to refer back to the employee's contract to check whether there is a provision for what happens upon termination. Employers and employees ALLIE LAURENT Associate McLennan Ross in Calgary

• Cover