Employers can make mistakes too
Despite workplace laws favouring their legal position, management errors made in the administration of human resources can put a company’s name on the front page of a Statement of Claim.
Here are 5 pivotal employment law mistakes that a company can make;
Bad Faith Dismissal – In 1997 the Supreme Court ruled that the manner in which an employee is terminated can attract additional liability. On average, employers have been forced to pay upwards of three additional months of salary, where the employee proves that pre- or post-termination conduct was unfair, insensitive, humiliating, or unreasonable. Due to this broad panoply of behaviour meeting this threshold, bad faith claims appear in over half the workplace lawsuits that I manage. I strongly advise that employers without experience in handling terminations seek out advice or risk paying damages in excess of the true value of the claim.
Resignations – The law of resignation requires clear and unequivocal actions or statements demonstrating and intention to voluntarily leave. In a recent B.C. case, the judge noted that employers have an onus not to pounce on an intemperate utterance of an emotional employee. The lesson for employers is, if you want to ensure that an employee has actually resigned, ask them to take their time and confirm intentions in writing.
Paying only the statutory minimum – Canada provides the minimum amount of notice or pay terminated employees are to receive. Aside from some other negotiated amount, most employees are entitled to the more generous “common law” severance payments imposed by the courts. As judges have historically agreed, employers who are only prepared to pay a fired employee the minimum amount must also be prepared to hear from his or her lawyer. Employment standards legislation across
Failing to conduct an investigation – If you want to rely on misconduct as grounds for dismissal, allegations must be thoroughly investigated by a trained and neutral party. The allegations should be put to the employee, who should be given the benefit of time and an opportunity to respond. In one notorious case where the outcome of an investigation was decided in advance, not only was the employee awarded wrongful dismissal damages and his legal costs, but the employer was forced to pay additional damages for the humiliating manner in which the dismissal was executed. While these guidelines appear simple, the courts have increasingly chastised bogus or perfunctory investigations.
Not properly documenting discipline – If you want to rely on misconduct as grounds for dismissal, demotion, or even a negative performance review, Canadian courts require that progressive or corrective means should be used first. Managers should send letters to employees clearly identifying areas of concern, offer suggestions for recovery and set out the consequences of an inability to improve.
Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal. He can be reached at firstname.lastname@example.org or visit www.toronto-employmentlawyer.com