From Hiring to Firing, and Everything in Between
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This document provides an overview and agenda for a day of training on hiring, discipline, dismissal, and investigations. The training will cover the risks in the hiring process and how to avoid common mistakes. It will review how to impose discipline and assess whether an employee can be fired. The training will also explain how to respond to allegations of misconduct like harassment and how to determine severance entitlement. Key topics include hiring risks, misconduct investigations, harassment investigations, performance management, dismissal with or without cause, and termination best practices.
From Hiring to Firing, and Everything in Between
- 1. 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.
- 2. 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
- 3. Most common mistakes ● no contract ● using contract w/o understanding ● contract too late ● no/poor termination clause ● assuming probation ● misclassification
- 4. The Risks of Getting It Wrong ● Mistakes can lead to claims of: ● Breach of Human Rights ● Inducement ● Misrepresentation 4
- 5. 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
- 6. 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
- 7. 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
- 8. 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
- 9. 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
- 10. Why Written Contracts? ● All employees have a contract, most are just verbal ● They include ○ items discussed + ○ many implied terms (for protection of employee) 10
- 11. 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
- 12. 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
- 13. 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
- 14. 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
- 15. 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
- 16. 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
- 17. 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
- 18. 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
- 19. Just Cause for Dismissal ● Contextual approach - consider all circumstances ● Proportionality is the guiding principle ● It’s all-or-nothing 19
- 20. Fair Investigation ● Investigate first ● Ensure fairness, objectivity, thoroughness ● Give opportunity to respond ● Often, employee response is critical factor in determining appropriate discipline 20
- 21. 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
- 22. ● Best practice: clear warnings, progressive discipline, culminating incident ● Single incident can be cause“culminating incident” DOCUMENT EVERYTHING Progressive Discipline Cont’d 22
- 23. 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
- 24. 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
- 25. 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
- 26. 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
- 27. 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
- 28. 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
- 29. 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
- 30. 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
- 31. Questions 31
- 32. 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!
- 33. Q&A RECRUITMENT & HIRING THE EMPLOYMENT CONTRACT REQUESTS FOR ACCOMMODATION HARASSMENT & BULLYING TERMINATION EMPLOYMENT LAWYERS
- 34. 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
- 35. Q&A RECRUITMENT & HIRING THE EMPLOYMENT CONTRACT REQUESTS FOR ACCOMMODATION HARASSMENT & BULLYING TERMINATION EMPLOYMENT LAWYERS
- 36. 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
- 37. 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
- 38. Q&A RECRUITMENT & HIRING THE EMPLOYMENT CONTRACT REQUESTS FOR ACCOMMODATION HARASSMENT & BULLYING TERMINATION EMPLOYMENT LAWYERS
- 39. 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
- 40. Questions & Answers: 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
- 41. Q&A RECRUITMENT & HIRING THE EMPLOYMENT CONTRACT REQUESTS FOR ACCOMMODATION HARASSMENT & BULLYING TERMINATION EMPLOYMENT LAWYERS
- 42. 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
- 43. Questions & Answers: 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
- 44. Q&A RECRUITMENT & HIRING THE EMPLOYMENT CONTRACT REQUESTS FOR ACCOMMODATION HARASSMENT & BULLYING TERMINATION EMPLOYMENT LAWYERS
- 45. 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
- 46. Questions & Answers: 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
- 47. Q&A RECRUITMENT & HIRING THE EMPLOYMENT CONTRACT REQUESTS FOR ACCOMMODATION HARASSMENT & BULLYING TERMINATION EMPLOYMENT LAWYERS
- 48. 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
- 49. Questions & Answers: 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
- 50. OPEN FORUM Q&A ASK STUART, Employment Lawyer and Mediator
- 51. Whitepapers, blog, etc MORE RESOURCES
- 52. Stuart Rudner Email: info@rudnerlaw.ca Phone: (416) 864-8500 or (905) 209-6999 Blog: rudnerlaw.ca/blog MORE QUESTIONS?