From Hiring to Firing, and Everything in Between

Day 2: From Hiring to Firing, and Everything in Between
We will review the risks in the hiring process, how to impose discipline, the laws of dismissal, and the
need for investigations. The most common mistakes are made at the beginning of the relationship, and
we will explain what those are and how to avoid them. We will also explain how to respond to suspicions
of misconduct, including allegations of harassment and sexual harassment, how to assess whether you
can ?fire? someone and how to assess the entitlement to severance.

9:00 Welcome
9:05 Hiring Process & Risks
Misclassification of worker
Inducement / misrepresentation
Default if no contract - to discuss in detail next week
probation
Human rights risks - social media & protected grounds
direct vs indirect discrimination
no smokers?
9:25 Misconduct & Discipline
Investigation first
Types of discipline
What you can’t do
9:40 Harassment & Investigations
Duties re policies
how to respond
investigation
9:55 Performance Management
PIPs
10:05 Dismissal
w/ vs w/o cause
Notice & severance
working notice, clawback etc
mitigation
duty of good faithJust Cause
misconduct or performance
Contextual approach

Most common mistakes
● no contract
● using contract w/o understanding
● contract too late
● no/poor termination clause
● assuming probation
● misclassification

The Risks of Getting It Wrong
● Mistakes can lead to claims of:
● Breach of Human Rights
● Inducement
● Misrepresentation
4

Human Rights Watch
● Human Rights legislation protects employees & candidates
● Applies to all parts of the working relationship, including hiring!
● Cannot discriminate based on race, ancestry, place of origin, colour, ethnic
origin, citizenship, creed, sex, sexual orientation, sexual identity, gender
identity, gender expression, age, record of offences, marital status, family
status, or disability
● List changes slightly from province to province
5

Human Rights in Hiring Process
Avoid human rights issues
● cannot discriminate on protected
grounds
● at all
● you don’t want to know more than you
have to
● use social media but
○ risk of inaccurate information
○ take everything with a grain of salt
○ risk of stumbling on inappropriate
information (e.g. race, age,
disability)
■ how to protect yourself
6

Human Rights Pitfalls
● Be careful about questions you ask
● Chit chat can be dangerous
● “Do you plan on having kids?”
● “How were your holidays?”
● “How was your weekend?”
7

Social Media in the Hiring Process
● Social Media can reveal a lot of personal information
● Pictures or posts may relate to prohibited grounds
● Do you NEED to know? Do you really want to know??
8

Best Practices - Social Media
● Have consistent protocol for every applicant
● Have non-decision maker filter out inappropriate info
● Log reasons for hiring / not hiring
9

Why Written Contracts?
● All employees have a contract, most are just verbal
● They include
○ items discussed
+
○ many implied terms (for protection of employee)
10

When No Written Contract
● Statute sets out terms of employment including:
● Minimum wage (unless verbal agreement for higher pay)
● Hours of work
● Overtime
● Vacation
● Leaves
● Etc…
● Contract cannot go below statute
● Common law adds many more, including Reasonable Notice of Dismissal
11

Employment Agreement
Basic Checklist:
✓duties (maintain flexibility)
✓compensation and benefits
(maintain flexibility)
✓restrictive covenants
✓vacation
✓termination
✓probation
12
✓no conflicting obligations
✓hours of work
✓vacation / holidays
✓acceptance of policies
✓conflict of interest
✓expenses
✓social media
✓use of personal devices

The value of a termination
clause
Example: A 65 year old Supervisor has worked with the same
employer for over 30 years with slim chances of re-employment
Written Contract: As little as 8 weeks’ pay
No Written Contract: Potentially 24+ months’ pay
13

Make the Contract Enforceable
Best practice:
● no verbal offers of employment
● the contract is the offer
○ not hired until they sign
● avoid emails like “welcome aboard” until then
● allow opportunity for independent legal advice
● provide consideration for changes
● review contracts regularly to ensure they reflect current state of law
1
4

Consider This
● For contract to be valid, there needs to be valid consideration
SOMETHING GIVEN FOR SOMETHING GAINED
● For new job, consideration is work in exchange for job offer
● BUT - offer has to be signed BEFORE employee has been hired
● If contract signed after work starts - may not be valid at all
15

For Existing Employees
For existing employees, when looking to change employment terms:
1)Have to provide new consideration, such as promotion, bonus, or
something of value
OR
1)Have to provide reasonable notice of change as though you’re
terminating them - if they don’t accept new agreement - may be the end
16

Two Types of Termination
With Cause & Without Cause
● With Cause: No further obligations to the employee
● Without Cause: Notice or pay in lieu of notice
There is NO middle ground - no “near cause”
17

Just Cause for Dismissal
“The capital punishment of employment law”
Employer must prove:
1. The alleged misconduct took place, and
2.The nature or degree of misconduct warranted dismissal, bearing
in mind all relevant circumstances
18

Just Cause for Dismissal
● Contextual approach - consider all circumstances
● Proportionality is the guiding principle
● It’s all-or-nothing
19

Fair Investigation
● Investigate first
● Ensure fairness, objectivity, thoroughness
● Give opportunity to respond
● Often, employee response is critical factor in determining
appropriate discipline
20

Progressive Discipline
“Some lesser form of discipline was appropriate…”
● Warnings (verbal and written)
● Suspension (paid and unpaid) - risky
● Demotion (almost never an option)
● Keys:
○ Set out expectations
○ Warn of consequences
○ Allow reasonable time for improvement
21

● Best practice: clear warnings, progressive discipline,
culminating incident
● Single incident can be cause“culminating incident”
DOCUMENT EVERYTHING
Progressive Discipline Cont’d
22

Without Cause
● Usually simpler, and far more common
● Employees think they’re entitled to jobs by default
FALSE
● Anyone* can be let go at any time for almost any reason, just have to
pay them out properly
*unless unionized or certain federally regulated groups
23

So when you say ‘pay’...
● Terminated employees entitled to:
● Working notice OR
● Pay in lieu of notice
● Notice - how long employee might reasonably need to find new
work
● Notice governed by law or by contracts (we’ll explain)
24

Working Notice
● Instead of money, keeping an employee on board for that time
● Usually not advisable, but sometimes it works
● All terms and conditions must remain unchanged
● Have to be reasonable during working notice
● Give them a chance to look for work!
25

Common Law Notice
● IF contract does not limit employee’s entitlement:
● Notice determined by common law notice, or judge-made notice
● Assessment based on 4 primary factors:
● Employee’s age
● Length of service
● Nature of their work
● Likelihood of finding a new position
● Other considerations, such as inducement
26

Termination Pay - Contract
● Well written employment contract will set out the notice period
● Must be written VERY carefully to be valid
● Case law changes frequently - review REGULARLY with a lawyer
● It doesn’t always say what you think it does
● It doesn’t always protect you like you think it will
27

Contract vs Common Law
Example: Employee is 68 years old, with the company since late ‘80s,
senior management level, unlikely to find new work.
Contract: As little as 8 weeks
No Contract: Potentially 24 months+
28

Assessing Termination Pay
● Common law “reasonable notice” is default
● Can be displaced by contract
BUT
● Termination clauses often challenged
● Termination with cause can be difficult to uphold
● Remember: A little bit extra may keep the lawyers at bay
29

Termination Tips & Tricks
● Have a termination plan in place!
● Have a witness
● Treat them with respect and act in good faith
● Plan to secure confidential information
● Do NOT let them sign anything right away!
30

Contact Us
416.864.8500
905.209.6999
info@rudnerlaw.ca
100 Allstate Parkway Suite 600
Markham, ON L3R 6H3
32
Presented By:
Stuart Rudner and
Shaun Bernstein
416.864.8501
416.864.8515
stuart@rudnerlaw.ca
shaun@rudnerlaw.ca
Sign up for our Newsletter!

Q&A
RECRUITMENT & HIRING
THE EMPLOYMENT CONTRACT
REQUESTS FOR ACCOMMODATION
HARASSMENT & BULLYING
TERMINATION
EMPLOYMENT LAWYERS

ANSWER:
When hiring,
b) "headhunting" a candidate
can increase their severance
entitlement
Recruiting &
Hiring
The Employment
Contract
Requests for
Accommodation
Harassment &
Bullying
Termination
When to Call an
Employment Lawyer

Recruiting & Hiring
The
Employment
Contract
Requests for
Accommodation
Harassment &
Bullying
Termination
When to Call an
Employment Lawyer
ANSWER:
In Canada,
a) every employee has an
employment contract

Questions & Answers:
The Employment Contract
Benefits
Written or verbal
Severance
Non-compete
Non-solicitation
Compensation
Probationary period
Modifying the contract
Collective agreement
Recruiting & Hiring
The
Employment
Contract
Requests for
Accommodation
Harassment &
Bullying
Termination
When to Call an
Employment Lawyer

ANSWER:
Accommodation can
include
a) accommodating a physical disability
b) alternative shifts to accommodate daycare
schedules
c) forgiveness of drunkenness at work
d) all of the above
Recruiting & Hiring
The Employment
Contract
Requests for
Accommodatio
n
Harassment &
Bullying
Termination
When to Call an
Employment Lawyer

Requests for
Accommodation
Disability
Addiction
Undue hardship
Leaves of absence
Policies & procedures
Scheduling options
Need vs. preference
Recruiting & Hiring
The Employment
Contract
Requests for
Accommodatio
n
Harassment &
Bullying
Termination
When to Call an
Employment Lawyer

ANSWER:
All employers in Canada must
a) have a harassment policy
Recruiting & Hiring
The Employment
Contract
Requests for
Accommodation
Harassment &
Bullying
Termination
When to Call an
Employment Lawyer

Harassment & Bullying
Workplace
Duty to investigate
Vexatious conduct
Intimidation
Balance of probabilities
Third-party witness
#MeToo
Recruiting & Hiring
The Employment
Contract
Requests for
Accommodation
Harassment &
Bullying
Termination
When to Call an
Employment Lawyer

ANSWER:
In Canada:
c) severance is to include
salary, estimated commissions,
and anticipated bonuses
Recruiting & Hiring
The Employment
Contract
Requests for
Accommodation
Harassment &
Bullying
Termination
When to Call an
Employment Lawyer

Termination
With cause
Without cause
Constructive dismissal
Severance pay
Reasonable notice
Resignation
Pay in lieu
Lump sum
Final release
Recruiting & Hiring
The Employment
Contract
Requests for
Accommodation
Harassment &
Bullying
Termination
When to Call an
Employment Lawyer

ANSWER:
You should contact an
employment lawyer if:
a) you have been offered an employment contract
b) you are considering dismissing an employee
c) you have been accused of harassment at work
d) all of the above
Recruiting & Hiring
The Employment
Contract
Requests for
Accommodation
Harassment &
Bullying
Termination
When to Call an
Employment
Lawyer

When to Call an
Employment Lawyer
Mediation
Negotiation
Investigation
Discrimination
Accommodation
Termination
Resolution
Recruiting & Hiring
The Employment
Contract
Requests for
Accommodation
Harassment &
Bullying
Termination
When to Call an
Employment
Lawyer

OPEN FORUM
Q&A
ASK STUART,
Employment Lawyer
and Mediator

Whitepapers, blog, etc
MORE RESOURCES

Stuart Rudner
Email: info@rudnerlaw.ca
Phone: (416) 864-8500 or (905) 209-6999
Blog: rudnerlaw.ca/blog
MORE QUESTIONS?

From Hiring to Firing, and Everything in Between

From Hiring to Firing, and Everything in Between

Recommended

Recommended

More Related Content

Similar to From Hiring to Firing, and Everything in Between

Similar to From Hiring to Firing, and Everything in Between (20)

More from Rudner Law

More from Rudner Law (20)

Recently uploaded

Recently uploaded (20)

From Hiring to Firing, and Everything in Between