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Effectively dealing with dismissals and terminations<br />by Toronto Training and HR <br />September 2011<br />
Contents<br />	3-4 Introduction to Toronto 	Training and 		HR<br />	5-6	Definitions<br />	7-8	Just cause<br />	9-10	Bill 2...
Page 3<br />Introduction<br />
Page 4<br />Introduction to Toronto Training and HR<br />Toronto Training and HRis a specialist training and human resourc...
Training course delivery</li></ul>-  Reducing costs<br /><ul><li>Saving time
Improving employee engagement & morale
Services for job seekers</li></li></ul><li>Page 5<br />Definitions<br />
Page 6<br />Definitions<br />Wrongful dismissal<br />Constructive dismissal<br />
Page 7<br />Just cause<br />
Page 8<br />Just cause<br />Misconduct, insubordination, wilful disobedience<br />Absenteeism or lateness<br />Incompetenc...
Page 9<br />Bill 236<br />
Page 10<br />Bill 236<br />RELEVANT CHANGES<br />Immediate vesting<br />Certain employee terminations will be more expensi...
Page 11<br />Employment Standards Act<br />
Page 12<br />Employment Standards Act 1 of 5<br />INDIVIDUAL TERMINATIONS<br />a. no notice is required where an employee ...
Page 13<br />Employment Standards Act 2 of 5<br />INDIVIDUAL TERMINATIONSe. 4 weeks’ notice in writing to the employee if ...
Page 14<br />Employment Standards Act 3 of 5<br />INDIVIDUAL TERMINATIONS<br />h. 7 weeks’ notice in writing to the employ...
Page 15<br />Employment Standards Act 4 of 5<br />MASS TERMINATIONS<br />Obligations are triggered in the event that 50 or...
Page 16<br />Employment Standards Act 5 of 5<br />FORM 1-includes details of:<br />the economic circumstances surrounding ...
Page 17<br />Implied duties<br />
Page 18<br />Implied duties 1 of 2<br />EMPLOYEES<br />To perform work in a competent and non-negligent manner<br />To be ...
Page 19<br />Implied duties 2 of 2<br />EMPLOYERS<br />To not change the fundamental terms of the employment contract with...
Page 20<br />Grounds for constructive dismissal<br />
Page 21<br />Grounds for constructive dismissal 1 of 2<br />Reduction in wages or benefits<br />An alteration in the manne...
Page 22<br />Grounds for constructive dismissal 2 of 2<br />Retraction of significant perquisites such as club memberships...
Page 23<br />Avoiding wrongful dismissal claims<br />
Page 24<br />Avoiding wrongful dismissal claims 1 of 2<br />Know the laws in your jurisdiction<br />Promptly document prob...
Page 25<br />Avoiding wrongful dismissal claims 2 of 2<br />Promptly provide letters to the employee explaining the proble...
Page 26<br />Damages<br />
Page 27<br />Damages 1 of 4<br />FACTORS INFLUENCING THE AMOUNT OF NOTICE<br />Termination provisions in employment contra...
Page 28<br />Damages 2 of 4<br />IN WRONGFUL DISMISSAL CASES THERE MAY BE<br />Damages in lieu of reasonable notice<br />P...
Page 29<br />Damages 3 of 4<br />ITEMS TO CONSIDER WHEN ASSESSING LIABILITY<br />Salary<br />Commissions<br />Bonuses<br /...
Page 30<br />Damages 4 of 4<br />ITEMS TO CONSIDER WHEN ASSESSING LIABILITY<br />Profits sharing<br />Stock option plans<b...
Page 31<br />Wallace damages<br />
Page 32<br />Wallace damages 1 of 2<br />HISTORY<br />Damages for wrongful termination<br />Pre-1997, before Wallace<br />...
Page 33<br />Wallace damages 2 of 2<br />TRENDS<br />Some courts are still extending the notice period<br />Not all courts...
Page 34<br />Dishonesty<br />
Page 35<br />Dishonesty 1 of 6<br />RECENT SURVEY IN CANADA<br />46% committed by employees ($50k)<br />37% committed by m...
Page 36<br />Dishonesty 2 of 6<br />RISK FACTORS<br />Incentive or pressure to perpetrate a fraud<br />Business (making th...
Page 37<br />Dishonesty 3 of 6<br />BIG OR LITTLE<br />Large Frauds Almost Always Involve Collusion<br />High risk of dete...
Page 38<br />Dishonesty 4 of 6<br />WHEN SUSPICIONS ARISE<br />Locate and read the policy<br />Conduct pre-notice investig...
Page 39<br />Dishonesty 5 of 6<br />ONGOING BUSINESS CONCERNS<br />Employee morale<br />Management sensitivity<br />Time r...
Page 40<br />Dishonesty 6 of 6<br />MANAGING EXPENSES<br />Create an expenses policy<br />Decide what to include<br />Comm...
Page 41<br />Integrity questionnaires<br />
Page 42<br />Integrity questionnaires<br />TYPICAL QUESTIONSI never make personal phone calls from work<br />If asked, I a...
Page 43<br />Questions to ask<br />
Page 44<br />Questions to ask 1 of 5<br />Have I got all of the facts, and has a proper, thorough investigation been condu...
Page 45<br />Questions to ask 2 of 5<br />If the issue is performance, has the employee been given fair warning (preferabl...
Page 46<br />Questions to ask 3 of 5<br />Have I observed all rules and followed proper preliminary procedures including m...
Page 47<br />Questions to ask 4 of 5<br />Am I being fair, unbiased, and level-headed, or am I reacting against the employ...
Page 48<br />Questions to ask 5 of 5<br />Does the punishment fit the crime?<br />What possible alternative is there to di...
Page 49<br />Case study A<br />
Page 50<br />Case study A  <br />
Page 51<br />Case study B<br />
Page 52<br />Case study B  <br />
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Effectively dealing with dismissals and terminations September 2011

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Half day interactive open workshop on how to legally and effectively end the employment relationship held in London, Ontario.

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Transcript of "Effectively dealing with dismissals and terminations September 2011"

  1. 1. Effectively dealing with dismissals and terminations<br />by Toronto Training and HR <br />September 2011<br />
  2. 2. Contents<br /> 3-4 Introduction to Toronto Training and HR<br /> 5-6 Definitions<br /> 7-8 Just cause<br /> 9-10 Bill 236<br /> 11-16 Employment Standards Act<br /> 17-19 Implied duties<br /> 20-22 Grounds for constructive dismissal<br /> 23-25 Avoiding wrongful dismissal claims<br /> 26-30 Damages<br /> 31-33 Wallace damages<br />34-40 Dishonesty<br />41-42 Integrity questionnaires<br />43-47 Questions to ask<br />49-52 Case studies<br />53-54 Conclusion and questions<br />Page 2<br />
  3. 3. Page 3<br />Introduction<br />
  4. 4. Page 4<br />Introduction to Toronto Training and HR<br />Toronto Training and HRis a specialist training and human resources consultancy headed by Timothy Holden <br />10 years in banking<br />10 years in training and human resources<br />Freelance practitioner since 2006<br />The core services provided by Toronto Training and HR are:<br /><ul><li>Training course design
  5. 5. Training course delivery</li></ul>- Reducing costs<br /><ul><li>Saving time
  6. 6. Improving employee engagement & morale
  7. 7. Services for job seekers</li></li></ul><li>Page 5<br />Definitions<br />
  8. 8. Page 6<br />Definitions<br />Wrongful dismissal<br />Constructive dismissal<br />
  9. 9. Page 7<br />Just cause<br />
  10. 10. Page 8<br />Just cause<br />Misconduct, insubordination, wilful disobedience<br />Absenteeism or lateness<br />Incompetence<br />Negligence<br />Breaching human rights, safety, or other laws<br />Breaching the employer’s policies<br />Dishonesty and breach of trust<br />Conflict of interest<br />Leaking confidential information or trade secrets<br />
  11. 11. Page 9<br />Bill 236<br />
  12. 12. Page 10<br />Bill 236<br />RELEVANT CHANGES<br />Immediate vesting<br />Certain employee terminations will be more expensive <br />Impact of new grow-in rules on voluntary exit packages<br />Introduction of “wilful misconduct”<br />Grow-in needs to be considered in terminations<br />
  13. 13. Page 11<br />Employment Standards Act<br />
  14. 14. Page 12<br />Employment Standards Act 1 of 5<br />INDIVIDUAL TERMINATIONS<br />a. no notice is required where an employee has been employed for under three months<br />b. 1 week’s notice in writing to the employee if his or her period of employment is less than 1 year<br />c. 2 weeks’ notice in writing to the employee if his or her period of employment is 1 year or more but less than 3 years<br />d. 3 weeks’ notice in writing to the employee if his or her period of employment is 3 years or more but less than 4 years<br />
  15. 15. Page 13<br />Employment Standards Act 2 of 5<br />INDIVIDUAL TERMINATIONSe. 4 weeks’ notice in writing to the employee if his or her period of employment is 4 years or more but less than 5 years<br />f. 5 weeks’ notice in writing to the employee if his or her period of employment is 5 years or more but less than 6 years<br />g. 6 weeks’ notice in writing to the employee if his or her period of employment is 6 years or more but less than seven years<br />
  16. 16. Page 14<br />Employment Standards Act 3 of 5<br />INDIVIDUAL TERMINATIONS<br />h. 7 weeks’ notice in writing to the employee if his or her period of employment is 7 years or more but less than 8 years<br />i. 8 weeks’ notice in writing to the employee if his or her period of employment is 8 years or more<br />
  17. 17. Page 15<br />Employment Standards Act 4 of 5<br />MASS TERMINATIONS<br />Obligations are triggered in the event that 50 or more employees are terminated in any period four weeks or less as follows:<br />a. 8 weeks’ notice if the employment of fifty or more persons and fewer than 200 persons is terminated at an establishment<br />b. 12 weeks’ notice if the employment of 200 or more persons and fewer than 500 persons is terminated at an establishment<br />c. 16 weeks’ notice if the employment of 500 or more persons is terminated at an establishment<br />
  18. 18. Page 16<br />Employment Standards Act 5 of 5<br />FORM 1-includes details of:<br />the economic circumstances surrounding the intended terminations<br />consultations with employees<br />any proposed adjustment measures<br />a statistical profile of the affected employees<br />
  19. 19. Page 17<br />Implied duties<br />
  20. 20. Page 18<br />Implied duties 1 of 2<br />EMPLOYEES<br />To perform work in a competent and non-negligent manner<br />To be honest in workplace dealings<br />To demonstrate loyalty to the employer<br />Not to compete with the employer’s business<br />Not to claim entitlement to inventions achieved during the employment<br />
  21. 21. Page 19<br />Implied duties 2 of 2<br />EMPLOYERS<br />To not change the fundamental terms of the employment contract without the employee’s agreement or without providing to the employee reasonable notice of that change<br />To maintain the position for which the employee is hired<br />To deal respectfully and fairly toward the employee<br />To not dismiss an employee who has become ill<br />To pay reasonable notice of termination if there is no just cause for that termination<br />
  22. 22. Page 20<br />Grounds for constructive dismissal<br />
  23. 23. Page 21<br />Grounds for constructive dismissal 1 of 2<br />Reduction in wages or benefits<br />An alteration in the manner of compensation (from salary to commission, for example)<br />Employer behaviour creating a workplace environment that makes continued employment intolerable (such as vague and unsubstantiated negative performance reviews, unjustified and non-specific warning letters and the unwarranted imposition of probation or the toleration of sexual harassment)<br />
  24. 24. Page 22<br />Grounds for constructive dismissal 2 of 2<br />Retraction of significant perquisites such as club memberships or company vehicles<br />A demotion in position, reorganization resulting in a reduction in responsibility or lower reporting level<br />Transfer to another geographic location<br />
  25. 25. Page 23<br />Avoiding wrongful dismissal claims<br />
  26. 26. Page 24<br />Avoiding wrongful dismissal claims 1 of 2<br />Know the laws in your jurisdiction<br />Promptly document problems with an employee<br />Deal with problem behaviour as it arises, not at some future date<br />Provide an opportunity for the employee to improve, if this is feasible<br />
  27. 27. Page 25<br />Avoiding wrongful dismissal claims 2 of 2<br />Promptly provide letters to the employee explaining the problem and what your expectations are for rectifying it consult with a lawyer as to whether there is just cause for termination in any given situation – while this costs you some fees, it may save you a lot of<br />other expenses down the road<br />Always keep in mind the implied duties of<br />the employer and always act in good faith<br />
  28. 28. Page 26<br />Damages<br />
  29. 29. Page 27<br />Damages 1 of 4<br />FACTORS INFLUENCING THE AMOUNT OF NOTICE<br />Termination provisions in employment contract<br />Age of employee<br />Length of employment<br />Nature of employment<br />Availability of similar employment, having regard to the employee’s experience, training and qualifications<br />
  30. 30. Page 28<br />Damages 2 of 4<br />IN WRONGFUL DISMISSAL CASES THERE MAY BE<br />Damages in lieu of reasonable notice<br />Punitive damages<br />Damages arising from torts<br />
  31. 31. Page 29<br />Damages 3 of 4<br />ITEMS TO CONSIDER WHEN ASSESSING LIABILITY<br />Salary<br />Commissions<br />Bonuses<br />Medical, dental, disability and life insurance coverage<br />Pension plans<br />Company vehicles<br />Vacation pay<br />
  32. 32. Page 30<br />Damages 4 of 4<br />ITEMS TO CONSIDER WHEN ASSESSING LIABILITY<br />Profits sharing<br />Stock option plans<br />Moving expenses and the cost of the new job search<br />Aggravated damages/mental distress<br />Punitive damages<br />
  33. 33. Page 31<br />Wallace damages<br />
  34. 34. Page 32<br />Wallace damages 1 of 2<br />HISTORY<br />Damages for wrongful termination<br />Pre-1997, before Wallace<br />1997, the birth of Wallace damages<br />1997-2008, the decade of Wallace bumps<br />The Keays ruling<br />
  35. 35. Page 33<br />Wallace damages 2 of 2<br />TRENDS<br />Some courts are still extending the notice period<br />Not all courts are demanding evidence of mental distress damages<br />Wallace damage awards are getting larger<br />Wallace damages are being extended for losses beyond mental distress <br />
  36. 36. Page 34<br />Dishonesty<br />
  37. 37. Page 35<br />Dishonesty 1 of 6<br />RECENT SURVEY IN CANADA<br />46% committed by employees ($50k)<br />37% committed by managers ($150k)<br />17% committed by owners/executives ($485k)<br />57% men; 43% women<br />Size of loss correlates with annual income level, tenure, age, education, level of collusion<br />86% were first-time offenders<br />45% judged as “living beyond their means”<br />45% experiencing financial difficulties<br />
  38. 38. Page 36<br />Dishonesty 2 of 6<br />RISK FACTORS<br />Incentive or pressure to perpetrate a fraud<br />Business (making the “number”)<br />Personal (usually financially motivated)<br />Opportunity to carry out a fraud<br />Access to assets<br />Inadequate or non-existent controls<br />Authority to dissuade detection<br />Attitude and ability to rationalize fraudulent action<br />Management culture<br />Financial aggressiveness<br />
  39. 39. Page 37<br />Dishonesty 3 of 6<br />BIG OR LITTLE<br />Large Frauds Almost Always Involve Collusion<br />High risk of detection<br />Enron, Tyco, WorldCom-- Madoff?<br />The frauds permeate operations<br />Small Frauds Can Be Carried Out by Individuals<br />Activities are under the radar screen<br />Unwitting accomplices<br />Few individuals are willing to report potential fraud<br />
  40. 40. Page 38<br />Dishonesty 4 of 6<br />WHEN SUSPICIONS ARISE<br />Locate and read the policy<br />Conduct pre-notice investigation<br />Give notice to crime and property carriers<br />Conduct thorough internal investigation<br />Deal with employee issues<br />Consider civil litigation<br />Consider criminal prosecution<br />
  41. 41. Page 39<br />Dishonesty 5 of 6<br />ONGOING BUSINESS CONCERNS<br />Employee morale<br />Management sensitivity<br />Time required of operations people<br />Cost<br />Delays<br />Periodic progress reports to management<br />
  42. 42. Page 40<br />Dishonesty 6 of 6<br />MANAGING EXPENSES<br />Create an expenses policy<br />Decide what to include<br />Communicate the rules<br />Be reasonable<br />Have several levels of authorization<br />Be consistent<br />Discipline appropriately<br />
  43. 43. Page 41<br />Integrity questionnaires<br />
  44. 44. Page 42<br />Integrity questionnaires<br />TYPICAL QUESTIONSI never make personal phone calls from work<br />If asked, I always give people my true opinion<br />I have never lost my temper<br />In my CV, I have been perfectly open and straightforward<br />
  45. 45. Page 43<br />Questions to ask<br />
  46. 46. Page 44<br />Questions to ask 1 of 5<br />Have I got all of the facts, and has a proper, thorough investigation been conducted to verify those facts?<br />Is the proposed disciplinary action for this employee consistent with the treatment others have received for the same offense? In the same department or other departments?<br />What is the employee’s past disciplinary record?<br />What is the employee’s service record?<br />Is the rule that has been violated a reasonable one?<br />Has the rule been applied in a reasonable way in this case?<br />Did the employee know the rule? If not, is it reasonable to think the employee should have known the rule?<br />
  47. 47. Page 45<br />Questions to ask 2 of 5<br />If the issue is performance, has the employee been given fair warning (preferably in writing) concerning the seriousness of his or her conduct? (This would not apply for serious misconduct, such as fighting on the job or sabotage, where there is irrefutable proof.)<br />Was there a record made of such past warning, and is it on file? Who gave the warning? When?<br />Have similar past violations resulted in little more than a verbal reprimand or even been overlooked?<br />Does my organization have a past record of strict enforcement for similar offenses? If not, have employees<br />been warned of the intention to strictly enforce the rule?<br />
  48. 48. Page 46<br />Questions to ask 3 of 5<br />Have I observed all rules and followed proper preliminary procedures including my employer’s disciplinary policies and procedures?<br />Was there a personal problem that may have contributed to the employee’s action?<br />Does the employee have a reasonable excuse?<br />Was the employee given a reasonable opportunity to improve?<br />Was the employee offered a reasonable amount of help and did the employee take advantage of that help?<br />Did the employee know what was expected of him or her?<br />
  49. 49. Page 47<br />Questions to ask 4 of 5<br />Am I being fair, unbiased, and level-headed, or am I reacting against the employee because of a personality clash, because there was a challenge to my authority, or because of a complaint (either formal or informal) made by the employee?<br />Can I prove the employee’s guilt by direct, objective evidence, or am I relying only on circumstantial evidence or suspicion?<br />What effect will the discharge (or failure to discharge) have on other employees and how will it affect morale?<br />Is the timing of the discharge correct (e.g., to avoid the appearance of retaliation)?<br />
  50. 50. Page 48<br />Questions to ask 5 of 5<br />Does the punishment fit the crime?<br />What possible alternative is there to discharge?<br />Are we dealing with a potential claim of employment discrimination or wrongful discharge?<br />(e.g., could factors such as age, gender, race, religion, disability, or national origin be an issue?)<br />Do I need assistance from my superior, the human resources department, or outside counsel?<br />
  51. 51. Page 49<br />Case study A<br />
  52. 52. Page 50<br />Case study A <br />
  53. 53. Page 51<br />Case study B<br />
  54. 54. Page 52<br />Case study B <br />
  55. 55. Page 53<br />Conclusion & Questions<br />
  56. 56. Page 54<br />Conclusion<br />Summary<br />Questions<br />
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