This document summarizes employment law concepts related to hiring, employment, and termination. It discusses common myths, notice and severance requirements, hiring processes and agreements, dismissal with and without cause, investigations, and human rights claims. Key points include the importance of proper investigations, progressive discipline, clear policies and agreements, and avoiding discrimination in hiring and firing.

1. HRNC / NIA
November 21, 2013
Niagara Falls
Presented by
Stuart E. Rudner
Employment Law 101:
From Hiring to Firing

2. Common Myths
 Every employee has a probation period during
which they can be dismissed without notice or
cause.
 Unless a contract states otherwise, employees are
only entitled to the Employment Standards Act
minimum amounts of notice / severance
 Termination clauses are not enforceable
 Only the most recent period of employment
counts when calculating entitlement to severance
pay
2

3. How Much Notice / Severance?
 You have to give a dismissed worker a “package”
 The common law requires one month of notice for
every year of service (or two weeks for every
year, or some other absolute amount).
 Pay in lieu of notice of dismissal includes base
salary only.
 An employer can discount the amount of notice of
dismissal required if the employee’s conduct or
performance was not up to par
3

4.  You can’t fire someone in Canada
 Providing positive or negative references to
dismissed employees can result in liability.
 Non-competition covenants are enforceable
against former employees.
 If you are concerned about a human rights
complaint, dismissing the individual on a without
cause basis will preclude a claim being brought.
4

5. From Hiring to Dismissal
1. Hiring Process
2. During the relationship
3. Dismissal
5

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

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

8. 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

9. 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

10. AODA & Accommodation
 Positive duty to accommodate in hiring
process
 Must advise applicants will accommodate
 Must proactively inquire
 Must accommodate if requested
 Applies to posting, websites, access to
interview space, etc.
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11. 11
Accommodation
 Duty to accommodate to point of “undue
hardship”
 Employees do not have to reveal need for
accommodation in application process
– Not “dishonest” or cause for dismissal
 Separate accommodation from hiring
decision if possible

12. Accommodation
 Process is to be 2 (or 3) way dialogue
 Employee must produce appropriate
medical documentation
 Not entitled to preferred form of
accommodation
 Must show appropriate efforts to consider
potential accommodations
12

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

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

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

16. Termination Clauses
 Enforceable if done properly
 Avoid uncertainty of “reasonable
notice” & reduce dismissal costs
 Use clear language
 Don’t go below employment
standards
16

17. Termination Clauses
 Address benefits
 Address mitigation
17

18. Policies to Protect the
Employer

19. Implementing Policies
A. Have a policy
B. Use clear and unambiguous language
C. Keep the policy up to date
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

20. 20
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”

21. 21
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

22. 22
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

23. 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
23

24. 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.
24

25. 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.
25

26. 26
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

27. 27
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”

28. 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
28

29. 29
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

30. Off-Duty Conduct
 Generally, what you do on your time is your business
 Unless
– 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.


31. 31
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

32. Vernon v. British Columbia
 30 year employee accused of
bullying/harassment
 Known as “The Little General”
 Offensive language, racial and other
inappropriate comments

33.  Investigators:
– Pre-judged
– Attacked accused and those who supported
her
– Misled decision-makers in report
 Result
– 18 months’ notice
– $35k in “The Damages Formerly Known as
Wallace”
– $50k punitive damages
33

34. Plester v. Polyone Canada Inc.
Flawed investigation
 all notes should have been retained — most
were, but some summaries were done and
original notes shredded
 interviews should all be done separately
 initial report included term “wilful
misconduct,” suggesting tunnel vision or
preliminary conclusion

35.  initial draft substantively same as final report,
suggesting decision reached without full
discussion
 no apparent review of similar situations or
comparable outcomes
 once possibility of dismissal for cause was seen
as a potential outcome, Plester should have
been given an opportunity to give a more
complete statement
 Dismissal not upheld
35

36. 36
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

37. 37
Stuart E. Rudner
srudner@rudnermacdonald.com
647.255.3100
www.rudnermacdonald.com
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