Canadian Employment Law Today

October 30, 2013

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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October 30, 2013 Ask an Expert with Stuart Rudner Rudner MacDonald, Toronto Have a question for our experts? Email I TERMINATION: Information in termination letter Question: What information is legally required in a termination letter? Does the employer have to give a reason if it's providing reasonable notice? Answer: Historically, the law has stipulated that an employer did not have to disclose the specific reason for dismissal when it is proceeding with a termination without cause. It is well-established that employers have the right to terminate the employment relationship at any time, for almost any reason. I say "almost," because an employer cannot dismiss someone based wholly or partly upon grounds that are protected by human rights legislation, or as a reprisal for, among other things, good faith complaints regarding harassment. Aside from those limited exceptions, an employer is entitled to end the relationship for any reason it chooses, no matter how silly, or for no reason at all. While it is common to offer a generic explanation such as "the decision to move in a different direction," there is no obligation to do so. However, the duty to act in good faith was defined by the Supreme Court to include a duty of honesty. It remains an open question as to whether that duty of honesty creates 2 an obligation to disclose the reason, though few if any courts have found that it does. In a dismissal without cause situation, I usually advise clients not to discuss the reasons. However, where the dismissal is for cause, employers should briefly review the reasons for the decision and ensure the employee has no basis upon which to claim she was dismissed for cause without ever being told why. The other context where providing a reason for the dismissal may be important is where there is the potential for an allegation that the dismissal related to a protected ground. For example, if the employee has recently announced she is pregnant, or suffers from a disability, it will be wise to make it absolutely clear the dismissal has nothing to do with such matters. While it is common to offer a generic explanation such as 'the decision to move on in a different direction,' there is no obligation to do so. During the dismissal meeting, the employer should be direct and to the point. The meeting is not the time for questions and answers, debate or discussion about how the situation could be improved, as the dismissal should be a final decision by the time of the dismissal meeting. I ACCOMMODATION: Communication with employee during leave Question: What is a reasonable amount of communication to require of an employee on paid or unpaid leave? Would it be different if there is a specific return-to-work date compared to an open-ended leave? nature of the leave in question. For example, If the employer has agreed to a six-month unpaid leave with a fixed return date, then there would be no reason to expect regular communication. If the employee is on parental leave, then there is no obligation for the employee to remain in regular communication, other than to confirm the return date if it will be different than the default pursuant to legislation. Conversely, if the employee is on medical leave without a scheduled return date, then it is incumbent upon the employee to remain in regular communication with the employer and update it on her condition. Many employers fail to follow up and ensure this occurs. I work with employers to establish a communication process or protocol and make sure the employee is aware she is required to provide regular updates with respect to her condition and, in particular, the limitations upon her ability to carry out her jobrelated duties. A medical leave of that nature is an accommodation, and accommodation is a two-way street. The employer is required to accommodate, but the employee is required to provide sufficient information in order to allow the employer to understand the situation that must be accommodated. As part of my work with employers, we make it clear to the employee on leave that our commitment is to assisting in a safe but speedy return to work, and we require as much information as possible in order to understand the types of accommodations that are feasible. An employee is not simply entitled to remain at home; other forms of accommodation should be considered. Sometimes, employees seem to "disappear" while on leave and ignore all attempts to communicate with them. That is a breach of their obligation, and ultimately can lead to a determination that they are absent without authorization. That being said, the employer should never be seen as harassing the employee with unnecessarily frequent Answer: The answer to this question will depend significantly upon the Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 9

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