For audio, it is recommended you dial in  A copy of the slides + recording will be available post webinar                 ...
Agenda• Termination Checklist• Termination Without Cause• Termination With Cause• Is Cause Dead?• Near Cause• What to Avoi...
TerminationBefore terminating the employment relationship, Human Resources and/or legal counsel should be consulted.      ...
Termination Checklist• Is this a performance based termination, a termination  for misconduct, or a simple downsizing?• Ar...
Termination Without Cause• If the termination is for lack of  performance, we offer a package• It is very hard to prove ca...
Termination Without Cause• Statutory Severance Pay• An employee qualifies for this payment if the employee:   – Has 5 or m...
Termination Without Cause• The provisions of the ESA 2000 are MINIMUMS• If the employee does not have a contract limiting ...
Termination Without Cause• Trying to ascertain reasonable notice on Bardal factors is  difficult and should involve legal ...
Termination Without Cause• It is always an option to make an offer of a lower amount  and then a higher amount in exchange...
What do the Courts Say?• The courts are awarding anywhere from 3  to 5 weeks’ per year of service• Employees with 9 years ...
Cause• Cause can be difficult to prove• The employer must prove that it  had cause if sued• The threshold for proving caus...
Cause• Do you have WRITTEN warnings?• Do the warnings properly warn of future consequence?• Has a program of progressive d...
Is Cause Dead?I have heard many people say that cause is dead in                     Ontario.               THIS IS NOT TR...
Is Cause Dead?• Single Incident Cause is dead in Ontario, or  nearly dead. It has been killed by labour  arbitrators  – Th...
The Theory of “Near Cause”• Near Cause is dead• However, practically speaking, we often use Near Cause  situations to our ...
Near Cause as LeverageEmployee X has been with ABco for 5 years. Over the last year and a   half he has received verbal an...
Near Cause as LeverageWe write to Mr. X and say “we have cause to terminateyour employment. Without prejudice to that posi...
Near Cause as LeverageWHY WOULD WE DO THIS?• Provides the employer with leverage• Provides a shield from summary judgment ...
What to Avoid• On top of regular notice provisions in any legal action,  the employee will claim aggravated damages, punit...
What to AvoidGenerally speaking, employee claims for these additional   damages are throw away claims. They are meritless ...
Meritorious ClaimsExamples Include:• Actions which humiliate the employee such as public  terminations, terminations in fr...
Meritorious Claims• Unreasonable refusals to provide reference letters• High-handed, cavalier or vindictive treatment• Ter...
Medical Issues:         A Completely Different Ballgame• Do not fire an employee for cause  due to absenteeism if there is...
Medical Issues• Frustration of contract is hard to prove• Has every effort to accommodate been made?• Has enough time pass...
Medical Issues• This is a very complicated and tiring road to go down• See my upcoming paper, Duelling With Doctors (to be...
QUESTIONS?For more information, call 416.216.1067
Free Offer• We’re offering a free 30-minute Consultation that will  introduce our HR Help Line, which includes:   – Perfor...
Upcoming WebinarRegister @https://drakeintl.webex.com/May 22, 12:00pm EDTHire Right the First TimePresented by: Michael Mc...
Thank You For Attending  For questions, please contact Maysa HawwashNational Manager – Talent Management Solutions        ...
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Death of the Employment Relationship

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Death of the Employment Relationship

  1. 1. For audio, it is recommended you dial in A copy of the slides + recording will be available post webinar AUDIO: 1-877-668-4493 Access Code: 665 708 964 Event Password: 1234 WebEx Support: 1-866-863-3910Death of the Employment Relationship April 10, 2013 Matthew R. Vella, Principal/Lawyer Vella Labour Law (Vella LPC)
  2. 2. Agenda• Termination Checklist• Termination Without Cause• Termination With Cause• Is Cause Dead?• Near Cause• What to Avoid• Medical Issues For more information, call 416.216.1067
  3. 3. TerminationBefore terminating the employment relationship, Human Resources and/or legal counsel should be consulted. For more information, call 416.216.1067
  4. 4. Termination Checklist• Is this a performance based termination, a termination for misconduct, or a simple downsizing?• Are there any human rights considerations?• Does the employee have a written contract which stipulates a reasonable notice period?• Are there other factors that may add to or detract from reasonable notice calculations? For more information, call 416.216.1067
  5. 5. Termination Without Cause• If the termination is for lack of performance, we offer a package• It is very hard to prove cause for failure to perform• In order to figure out what that package should be, (if there is no contract), we must consider: – Statutory Termination Pay (1 week per year of service up to 8 weeks) – Statutory Severance Pay For more information, call 416.216.1067
  6. 6. Termination Without Cause• Statutory Severance Pay• An employee qualifies for this payment if the employee: – Has 5 or more years of service AND • The employer has an annual payroll of $2.5 million or greater; OR • May be applicable in the case of large terminations/discontinuance of business For more information, call 416.216.1067
  7. 7. Termination Without Cause• The provisions of the ESA 2000 are MINIMUMS• If the employee does not have a contract limiting him or her to those provisions, we need to assess greater common law notice – The Employee’s Bardal Factors • Age • Length of service • Availability of similar employment • Position For more information, call 416.216.1067
  8. 8. Termination Without Cause• Trying to ascertain reasonable notice on Bardal factors is difficult and should involve legal counsel• There are factors which may increase reasonable notice entitlements above the Bardal factors – For example, an employee who was recently enticed away from another employer may be entitled to much greater notice even though he has only been with you a short period of time. For more information, call 416.216.1067
  9. 9. Termination Without Cause• It is always an option to make an offer of a lower amount and then a higher amount in exchange for a release. Or to offer the higher amount up front and ask for a release• We try to make the calculation based on: – What is reasonable and fair in the circumstances based on similar cases – What is an amount which is not the most the employee could win, but is enough to make a lawsuit not worthwhile For more information, call 416.216.1067
  10. 10. What do the Courts Say?• The courts are awarding anywhere from 3 to 5 weeks’ per year of service• Employees with 9 years are now routinely winning 12 month awards• Stay out of the courtroom if you can, it will cost you more than you can imagine• This is why up-front costs of properly assessing and drafting terminations are well worth it For more information, call 416.216.1067
  11. 11. Cause• Cause can be difficult to prove• The employer must prove that it had cause if sued• The threshold for proving cause GROWS as the employee gains seniority For more information, call 416.216.1067
  12. 12. Cause• Do you have WRITTEN warnings?• Do the warnings properly warn of future consequence?• Has a program of progressive discipline been followed?• Have you condoned the behavior?• Has there been a culminating incident?• Please don’t go to your lawyer after the termination with an empty employee file For more information, call 416.216.1067
  13. 13. Is Cause Dead?I have heard many people say that cause is dead in Ontario. THIS IS NOT TRUE. For more information, call 416.216.1067
  14. 14. Is Cause Dead?• Single Incident Cause is dead in Ontario, or nearly dead. It has been killed by labour arbitrators – The case of the hunting rifle – The case of the employee who was lit on fire For more information, call 416.216.1067
  15. 15. The Theory of “Near Cause”• Near Cause is dead• However, practically speaking, we often use Near Cause situations to our benefit For more information, call 416.216.1067
  16. 16. Near Cause as LeverageEmployee X has been with ABco for 5 years. Over the last year and a half he has received verbal and written warnings for lateness, poor work attitude, failure to follow proper instructions. In April of this year Mr. X fails to attend work for two days without calling in. When he returns he says that he was sick, however he has no doctor’s note.ABco has had enough. They want to fire Mr. X. Counsel tells them that they have a decent case for cause but that it is not really a slam dunk. There is exposure to liability, but tells ABco to allege cause anyway and to make an offer in settlement (for a release). For more information, call 416.216.1067
  17. 17. Near Cause as LeverageWe write to Mr. X and say “we have cause to terminateyour employment. Without prejudice to that position we offer you 6 weeks’ pay in exchange for a release.” For more information, call 416.216.1067
  18. 18. Near Cause as LeverageWHY WOULD WE DO THIS?• Provides the employer with leverage• Provides a shield from summary judgment motions and ensure the employer is not completely defenceless• You cannot allege cause later if you do not do it at the time of termination• There is always the chance that Mr. X will sign the release and then there are no possible future actions. For more information, call 416.216.1067
  19. 19. What to Avoid• On top of regular notice provisions in any legal action, the employee will claim aggravated damages, punitive damages, moral damages, et cetera• We have seen some pretty crazy claims, including allegations of forcible confinement For more information, call 416.216.1067
  20. 20. What to AvoidGenerally speaking, employee claims for these additional damages are throw away claims. They are meritless and put in the claim as a bargaining chip to be discarded at mediation. But not all are. For more information, call 416.216.1067
  21. 21. Meritorious ClaimsExamples Include:• Actions which humiliate the employee such as public terminations, terminations in front of a “firing squad”, or terminations conducted in other embarrassing circumstances• Emails to the entire workforce about why the employee was fired OR emails or other notices that are misleading• Failure to pay statutory termination pay• Failure to pay vacation pay For more information, call 416.216.1067
  22. 22. Meritorious Claims• Unreasonable refusals to provide reference letters• High-handed, cavalier or vindictive treatment• Terminations at times when the employer knew that the employee was in a personal situation• Allegations of cause or misconduct which are clearly without merit For more information, call 416.216.1067
  23. 23. Medical Issues: A Completely Different Ballgame• Do not fire an employee for cause due to absenteeism if there is a medical issue• Employee side lawyers are starting to learn the value of jury trials for these• Do not fire an employee without cause if there are medical issues that may be human rights protected until and unless the contract is “frustrated” For more information, call 416.216.1067
  24. 24. Medical Issues• Frustration of contract is hard to prove• Has every effort to accommodate been made?• Has enough time passed to say that the employee cannot recover?• Is there medical evidence showing a poor prognosis for recovery?• Frustration must be an “unforeseen event”. Do your policies make it impossible to allege frustration? For more information, call 416.216.1067
  25. 25. Medical Issues• This is a very complicated and tiring road to go down• See my upcoming paper, Duelling With Doctors (to be released soon) For more information, call 416.216.1067
  26. 26. QUESTIONS?For more information, call 416.216.1067
  27. 27. Free Offer• We’re offering a free 30-minute Consultation that will introduce our HR Help Line, which includes: – Performance management advice including lawful terminations and company restructures – Generalist strategic HR advice on any workplace issuesContact Maysa to take advantage of this exclusive offer!mhawwash@na.drakeintl.com416.216.1067 For more information, call 416.216.1067
  28. 28. Upcoming WebinarRegister @https://drakeintl.webex.com/May 22, 12:00pm EDTHire Right the First TimePresented by: Michael McGrathArea Sales Manager, Drake International For more information, call 416.216.1067
  29. 29. Thank You For Attending For questions, please contact Maysa HawwashNational Manager – Talent Management Solutions mhawwash@na.drakeintl.com 416.216.1067

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