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Dismissals and terminations

by Toronto Training and HR

November 2014

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CONTENTS3-4 Introduction5-6 Definition7-8 Employment contracts9-10 Factors to take into account11-12 Progressive discipline13-16 Just cause17-18 Notice of termination19-21 How to reduce the legal uncertainty of a

wrongful dismissal case 22-23 Damages24-26 No-brainers27-28 Spotting a liar29-31 Fraud32-33 Receiving the complaint34-36 Investigations37-41 Disciplinary interviews42-43 Why do we need…disciplinary interviews44-45 Why do we need…grievance procedures46-49 Fundamentals around terminations 50-51 Conclusion, summary and questions

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Introduction

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Introduction to Toronto Training and HR

Toronto Training and HR is a specialist training and human resources consultancy headed by Timothy Holden 10 years in banking15 years in training and human resourcesFreelance practitioner since 2006The core services provided by Toronto Training and HR are:

Training event designTraining event deliveryHR support with an emphasis on reducing costs, saving time plus improving employee engagement and moraleServices for job seekers

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Definitions

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Termination of employmentConstructive dismissalWrongful dismissalTemporary lay-offWritten notice of terminationTermination payMass termination

Definitions

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Employment contracts

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Written or implied contractsDefinition of expectationsEmployer’s implied expectations

Employment contracts

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Factors to take into account

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Matters relating to conductMatters relating to poor performance

Factors to take into account

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Progressive discipline

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DefinitionPromotes dialogue, establishes expectations and allows opportunities for improvementPossible steps

Progressive discipline

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Just cause

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DefinitionWithout just cause

Notice of termination under the Employment Standards Act, unless the employee was guilty of…

Just cause 1 of 3

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Three step testDetermine the nature and extent of the misconductConsider the surrounding circumstances for both the employer and the employeeDetermine if dismissal is warranted as a proportional response

Just cause 2 of 3

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Contextual assessmentWhat are the surrounding circumstances?

Just cause 3 of 3

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Notice of termination

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Working noticeAdequate noticeReasonable notice

Notice of termination

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How to reduce the legal uncertainty of a

wrongful dismissal case

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Employment contracts with a termination clauseIf no termination clause exists, provide working notice of terminationIf no working notice of termination exists, provide outplacementPay out termination pay and severance pay under the ESA

How to reduce the legal uncertainty of a wrongful dismissal case1 of 2

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Provide referencesKeep track of job vacancies posted online and provide these to the employee involved

How to reduce the legal uncertainty of a wrongful dismissal case2 of 2

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Damages

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Wrongful dismissalViolation of the Human Rights CodePunitive damages

Damages

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No-brainers

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When an employee…is found dealing drugs in the workplaceposes a clear danger to personnel or propertyis disclosed to have falsified information on a resume and doesn’t possess proper credentials for the position held

No-brainers 1 of 2

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When an employee…(cont.)is found guilty of sexual assault or committing a “hate crime” on the jobis caught stealing at workrefuses to stop violating basic organizational policies admits to intentionally sabotaging company equipment or selling trade secrets to competitors

No-brainers 2 of 2

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Spotting a liar

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Speech patternsFacial expressionsPostureDehydrationNerves Body language

Spotting a liar

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Fraud

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Questions to askIs it too good to be true?Have you checked the source documents?Do you trust the auditors, trustees and regulators?Is your suspect a bullying, manipulative and secretive liar?Do you have a whistleblowing program?

Fraud 1 of 2

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Initiatives to takeHave a code of conduct and management training programHave a fraud policyScreen new employees thoroughlyHave a whistleblower line

Fraud 2 of 2

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Receiving the complaint

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Types of complaintSources of complaintAnonymous complaintsKey issues

Receiving the complaint

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Investigations

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DefinitionWhy is it necessaryDuty to investigateObjectivesBarriersPrivilegeActions to support

Investigations 1 of 2

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Steps to takeDocument the complaint or suspicionDetermine any interim actionChoose the investigatorPrepare the materialsConduct the interviewsAssess the information and factsMake the decisionIssue a summary report

Investigations 2 of 2

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Disciplinary interviews

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Ensure all the facts are investigated in advance and plan how the meeting is to be approachedMake sure the employee knows why they have been asked to attend and that they have a right to have a companion presentMake sure the individual has reasonable notice, ideally more than 72 hours

Disciplinary interviews 1 of 4

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Provide appropriate statements from people involved in advance of the meeting, together with any key information you intend to rely onMake sure another member of management can be there to take detailed notes and help conduct the interviewNever pre-judge the outcome of the interview before hearing the employee's perspective

Disciplinary interviews 2 of 4

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Start the interview by stating the complaint to the employee and referring to appropriate statementsGive the employee ample opportunity to put forward their side of the story and call any supporting witnessesEmployers can also call witnesses, but they can only be in the room for the relevant part of the interview – not the duration

Disciplinary interviews 3 of 4

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Make use of adjournmentsDeliver the decision, confirm review periods and ensure you give details of how to appealConfirm the decision in writing

Disciplinary interviews 4 of 4

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Why do we need…disciplinary procedures

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Let employees know what is expectedIdentify obstacles to individuals achieving the required standardsEnable suitable objectives to be agreedTry to resolve matters without a tribunalDemonstrate to a tribunal that an appropriate process has been followed

Why do we need…disciplinary procedures

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Why do we need…grievance procedures

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Provide individuals with a course of action if they have a complaint (which they are unable to resolve through regular communication with their line manager)Provide points of contact and timescales to resolve issues of concernTry to resolve matters without recourse to a tribunal

Why do we need…grievance procedures

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Fundamentals around terminations

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Document all remedial efforts-review the process with legal experts if necessaryIf in doubt, get a second opinion (some organizations don’t allow any one person to hire or terminate personnel)

Fundamentals around terminations 1 of 3

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Once a decision is made, don’t waffle, waiver or second-guess yourself; press fiercely forwardTerminate in private; but include a witness if appropriateNever terminate in angerGive reasons for the termination; but don’t debate or argue with the employee

Fundamentals around terminations 2 of 3

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Strive to part amicably and offer support if possibleMake reasonable accommodations for an orderly and dignified exitSecure the organization’s property, files and data during the process-add security if a threat is involvedAfter the termination, don’t share details with other employees

Fundamentals around terminations 3 of 3

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Conclusion, summary and questions

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Conclusion, summary and questions

ConclusionSummaryVideosQuestions