Canadian Employment Law Today

with Colin Gibson Ask an Expert Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2016 2 | March 2, 2016 2 | March 2, 2016 Answer: Generally speaking, an employer has the right to terminate the employment of a non-union employee with or without cause. If the dismissal is without cause, the employer must provide the amount of working notice or severance compensation to which the employee is entitled under the applicable employment standards legis- lation and the express or implied terms of the parties' employment agreement. ere is often no need to explain or justify the reasons for dismissing an employee with- out cause. A simple statement in the dismissal letter to the eff ect that the termination is without cause is normally suffi cient. Also, it is usually advisable in the termination meeting to refrain from getting drawn into a discus- sion or debate about the reasons for termina- tion. Emphasizing that the dismissal is with- out cause and encouraging the employee to review the severance off er carefully and focus on moving forward is often good practice. In Beatty v. Canadian Mill Services Assn., the employee claimed the employer had act- ed callously and in bad faith when it notifi ed him that his employment was terminated because the organization had decided to "go in a diff erent direction." e B.C. Supreme Court rejected this argument, and ruled that the employer's representative "was not required to express any more extensive rea- sons for the termination than he did when the defendant was not attempting to dismiss the plaintiff for cause." However, there are situations where it is advisable for an employer to provide reasons for its decision to terminate an employee without cause. In all Canadian jurisdictions, there are statutory restrictions on an em- ployer's right to dismiss an employee. For example, under human rights legislation, an employer's dismissal decision must not be connected to a protected ground such as disability, sex, or age. Nor can a decision to terminate employment be a form of retali- ation or reprisal for an employee's exercise of certain statutory rights, such as fi ling a human rights complaint, raising an occupa- tional health and safety issue, fi ling a work- ers' compensation claim, engaging in lawful trade union activity, or taking a leave pro- tected by employment standards legislation. If the employer believes there is a risk of such a complaint, it will usually be advisable to outline the reasons for termination, to show the dismissal decision was not infl u- enced by a prohibited consideration. For ex- ample, the termination letter might explain that the employee is being terminated as part of a downsizing due to adverse economic circumstances, especially if the employee is the most junior worker in the aff ected area. Another appropriate explanation might be a restructuring of the organization that has resulted in the elimination of the employee's position. Where accurate and defensible reasons for dismissal are provided, the risk of an employee sensing an ulterior motive and fi ling a complaint may be reduced. Employers should also be mindful of the manner in which a dismissal without cause and without any explanation can aff ect the climate in the workplace. If employees feel that a colleague has been dismissed for ar- bitrary reasons, it may create a feeling of un- ease or fear that can have an adverse impact on morale and production. It is good practice to provide an employee with a letter confi rming the termination of her employment, even if written notice of termination is not legally required. If it is not possible to provide a letter at the time of dismissal, a letter confi rming the termina- tion should be sent as soon as possible af- terwards. e letter should confi rm that the employment relationship has been termi- nated, and indicate whether the dismissal is with or without cause. If cause is alleged, rea- sons should be provided. e letter should indicate that the employee will be paid all wages that are owed up to and including the last day of employment, and set out any sev- erance package that is being off ered. e let- ter should also explain how the employee's benefi t coverage will be aff ected, and make arrangements for return of the employer's property and the employee's belongings. If there are restrictive covenants the employer expects the employee to comply with after termination, it is often useful to summarize them in the termination letter. If the employer is providing the employee with working notice of dismissal, the em- ployment standards statutes in most juris- dictions require that the notice be provided in writing. Working notice must be clear and unequivocal, and must specify the date when employment will end. For this message to be communicated unambiguously, the notice should always be in writing. Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Implementing a dismissal: Is a termination meeting required? Question: Can an employee be terminated through communication other than in person, particularly if the employee works remotely and the employer doesn't want her on the premises? Answer: In most situations, it is good prac- tice to meet with an employee in person to communicate the message that her employ- ment is being terminated. If the employee is a member of a trade union bargaining unit, the collective agreement may require that the employee be informed of the dismissal in person in the presence of a union rep- resentative. Otherwise, there will likely be no legal or contractual requirement that a termination decision be communicated in person, but it is nevertheless advisable for an employer to ensure that this occurs. Dismissing an employee by email, or through a letter couriered to the employee's home, may be perceived by the employee as being callous or insensitive, and can give rise unnecessarily to a claim or complaint. Circumstances may arise where it is not possible to conduct a termination meeting in person. For example, the employee may work out of a home offi ce or at a remote lo- cation. In this type of situation, the employer should speak with the employee on the tele- phone, and then confi rm the termination in a letter or email. If the employee is in the vicinity but the employer does not wanther to come onto the premises, it may be possible to arrange a meeting at a location off -site. For more information see: • Beatty v. Canadian Mill Services Assn., 2003 CarswellBC 1720 (B.C. S.C.). Colin Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@har- risco.com. Dismissal without cause: Do reasons need to be given? Question: If an employee is dismissed without cause and provided reasonable notice or pay in lieu, does the employer have to provide any reasons for termination? Is a written termination letter always necessary? Colin Gibson Ask an Expert Dismissal without cause: Do reasons need to be given? Question: provided reasonable notice or pay in lieu, does the employer have to provide any reasons for termination? Is a written termination letter always necessary? HARRIS AND COMPANY VANCOUVER It is good practice to provide a letter confi rming dismissal

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