Stuart spoke at Job Skills - Employer Rights and Responsibilities 2013 Seminar.

1. Job Skills
September 19, 2013
Turnberry Golf Course
Presented by
Stuart E. Rudner
Employment Law:
Hiring & Firing

2. The Hiring Process
 Dealing with publicly available information
online
 Courts recognizing Facebook and similar
postings not necessarily “private”
 Don’t demand access or password

3. Caution
 Risk of inaccurate information
 Take everything with a grain of salt
 Risk of stumbling
on inappropriate information
– Race
– Age
– Disability

4. Human Rights Code
 Every person who is an employee has a
right to freedom from harassment in the
workplace by the employer or agent of
the employer or by another employee
because of…
 You don’t want to know more than you
need to

5. Mitigating Risks
 Have protocol for every applicant
 Screen candidates in consistent manner
 Have non-decision maker filter out
inappropriate info
 Log reasons for not hiring

6. AODA & Accommodation
 Employees do not have to reveal need for
accommodation in application process
 Not “dishonest” or cause for dismissal
6

7. AODA
 Positive duty to accommodate in hiring
process
 Must advise applicants will accommodate
 Must accommodate if requested
 Separate accommodation from hiring
decision if possible
 Even more critical to log reasons for
decision
7

8. Employment Agreements
 Use them!
 Do it properly
– Before there’s already an agreement
– With consideration
– Explained and understood
– Independent legal advice

9. Employment Agreements
 Basic Checklist:
– Duties (maintain flexibility)
– Remuneration and benefits (maintain
flexibility)
– Restrictive Covenants
– Vacation
– Termination
– No conflicting obligations

10. Employment Agreements
 Basic Checklist (cont’d):
– Hours of work
– Vacation / holidays
– Dress code
– Alcohol
– Conflict of interest
– Expenses
– etc

11. Termination Clauses
 Enforceable if done properly
 Avoid uncertainty of “reasonable
notice”
 Reduce dismissal costs
 Don’t go below employment
standards
 Address benefits
 Use clear language
11

12. Policies to Protect the
Employer

13. Protecting the Organization
A. Have a policy
B. Use clear and unambiguous language
C. Update the policy as technology changes
D. Publicize the policy
E. Make employees aware of concerns
F. Ensure supervisors and managers are aware
of the policy and how to monitor;
G. Monitor behaviour
H. Discipline violators

14. 14
Dismissals
 2 types: With cause or without
cause
 If with cause, no further
obligation to employee
 Otherwise, need to assess
employee’s entitlements to
notice/pay in lieu/severance
 No “near cause”

15. 15
Dismissals
 2 types: With cause or without
cause
 If with cause, no further
obligation to employee
 Otherwise, need to assess
employee’s entitlements to
notice/pay in lieu/severance
 No “near cause”

16. 16
Without Just Cause
 Notice of Dismissal or Pay in Lieu
 Two sources of entitlement
– Employment Standards Act /
Canada Labour Code
– Common Law
 Can contract out of common law

17. 17
Common Law: The Length of
Notice
 Requirement: “reasonable” notice
of dismissal
 The Bardal Factors
1) Length of service
2) Age
3) Position / Character of Employment
4) Availability of Similar Employment

18. What is “reasonable”?
 No “rule of thumb” or direct 1:1
relationship between years of service and
months of reasonable notice
 Beware the short-term employee
 Inducement
18

19. The Changing Times
 End of mandatory retirement, people
working longer --> Wrongful dismissal
claims by workers in 70s and 80s!
 Recent decision:
I do not think there is a place in this social reality
for an automatic presumption that persons should
or would naturally retire on reaching senior age.
19

20. The Changing Times
Di Tomaso v. Crown Metal Packaging Canada
LP:
there is recent jurisprudence suggesting
that, if anything, (position/character of
employment) is today a factor of declining
relative importance.
20

21. 21
Without Cause: Options
 Working notice
– must allow opportunity to
look for new employment
 Salary & benefit continuance
 Lump-sum
 Combination
 Dangers of failing to continue benefits

22. 22
Just Cause: Performance Issues
Employer must:
 Set a clear, reasonable standard
 Communicate expectations
 Measure the performance
 Take appropriate action
– Warnings (verbal and written) – document
everything!
– Counseling
– Training
 Allow reasonable time for improvement

23. 23
For Just Cause
 Capital Punishment of Employment Law
 Employer must prove:
1. that the alleged misconduct took place,
and
2. that the nature or degree of misconduct warranted
dismissal, bearing in mind all relevant
circumstances
 Proportionality is guiding principle – “punishment
must fit the crime”

24. The Contextual Approach
 Employer must consider all circumstances,
not just alleged misconduct
– Length of service
– Disciplinary history
– Nature of position
 Same set of facts can yield different
results
24

25. Can You Discipline for Off-Duty Conduct?
 Generally, what you do on your time is your business
 But if
– The conduct renders the employee unable to perform his
duties satisfactorily.
– The conduct interferes with the efficient management of
the operation or workforce.
– The conduct leads to a refusal or reluctance of other
employees to work with him.
– The conduct harms the general reputation of the Employer,
its product or its employees.


26. 26
The Importance of the
Investigation
 Investigate first
 Ensure fairness, objectivity, thoroughness
 Give opportunity to respond
 Often, employee response is critical factor
in determining appropriate discipline

27. 27
Human Rights Claims
 Cannot dismiss based upon protected
ground
 Caution when applying performance
requirements
 Even if tiny part of reason was
protected ground despite other
legitimate reasons
 Potential for “general damages” plus
damages for loss of income from date
of dismissal to date of hearing

28. 28
Stuart E. Rudner
srudner@rudnermacdonald.com
647.255.3100
www.rudnermacdonald.com
Twitter: @CanadianHRLaw
LinkedIn: Connect with me and join the
Canadian HR Law Group
Blog: Canadian HR Law
http://www.hrreporter.com/blog/canadian-hr-law
Google+: Canadian Hr Law
Thank you