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Employment Law – An Overview
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April 20, 2012
Presented for: Professional Municipal Administrators
Annual MeetingCorner Brook, NL
Presented by:
Jamie Martin
Basic Assumptions
No union
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Basic Assumptions
Independent contractor or employee?
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Basic Assumptions
Constructive Dismissal:
Intolerable employment situation Change in duties Change in location Implied terms of employment
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Hiring
Human Rights Considerations
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Hiring
Terms and Conditions of Employment
Policy Manual Benefits (sick leave, vacation leave, STD/LTD,
etc.) Internet usage Conflict of interest Acknowledgement of Receipt by Employee Respectful behaviour / Harassment
Letter of Engagement
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Hiring
Identify (where applicable) in letter:
Position Salary Benefits Termination Provisions, if any
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Restrictive Covenants
Non-solicitation
Non-competition
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Duties During Employment
Occupational Health and Safety – safe workplace
WHSCC – s. 89.1: Obligation to re-employ Not applicable if less than 20 employees Penalties
Human Rights
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Pre-Termination Considerations
Human rights considerations Termination for cause Termination without cause
What is the employee’s entitlement?
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Human Rights Considerations: Prohibited Grounds of
Discrimination race colour nationality ethnic origin social origin religious creed religion age
disability disfigurement sex sexual orientation marital status family status source of income political opinion
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Source: Human Rights Act, 2010
Terminations with Potential Liability
Under the Labour Standards Act and Human Rights Act, 2010
Pregnant employee Employee currently on pregnancy or parental
leave Protected under s. 9(2) of the Human Rights Act: Where
this Act protects an individual from discrimination on the basis of sex, the protection includes the protection of a female from discrimination on the basis that she is or may become pregnant.
Employee on disability leave Mandatory Retirement
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What Constitutes Just Cause?
Theft / Fraud / Dishonesty Insolence / Insubordination Incompetence Lateness / Absenteeism Conflict of Interest Sexual Harassment
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Just Cause Considerations
Employers should consider: Circumstances surrounding alleged
misconduct Level of seriousness of alleged misconduct Extent to which the alleged misconduct
impacted upon the employment relationship
Question: Is there another option, short of dismissal?
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Just Cause Considerations
Do you ever pay severance if you have just cause?
“it depends” Only pay to obtain a Final Release Make sure that it is “without
prejudice” Do not pay too much
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Termination Without Cause
Statutory Entitlement (LSA notice) Employment Contract? Reasonable notice at common law
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Termination Payments
LSA Individual Termination Notice:
Length of Employment Notice RequiredLess than 3 months None3 months, less than 2 years 1 week2 years or more, less than 5 years 2 weeks5 years or more, less than 10 years3 weeks10 years or more, less than 15 years 4 weeks15 years or more 6 weeks
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Source: Labour Standards Act
Mass Terminations (Labour Standards Act)
S. 57 of Act Greater than 50 employees within a 4 week period Greater than 50, less than 200 employees – 8 weeks Greater than 200, less than 500 employees – 12
weeks Greater than 500 employees – 16 weeks Does not apply in respect of employees whose
contracts of service have existed for less than 1 month
Required to notify Minister
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Terminations
Rule of Thumb??
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Termination Payments
Reasonable Notice at Common Law: Age Length of Service Salary Level Position Inducement Wallace factor / Bad Faith
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Termination Documents
Structuring the severance package Drafting the termination letter Final release
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Structuring the Severance Package
For cause – no package Without cause:
1. Employment Contract Fixed term = no severance? Is there a termination clause?
2. No Employment Contract LSA entitlement Common law (including LSA minimums)
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Working Notice Considerations
Productivity Ability to look for other work
Interviews Outplacement
No guarantee of employment Retention bonus
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Lump Sum vs. Salary Continuation
Prospects of re-employment Skills Education Age
Access to benefits Personal circumstances
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Mitigation Considerations
Definition of “alternative employment”
“Clawback” (i.e. windfall)
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Structuring the Package
Other issues:
Bonus/variable compensation
Benefits and pension
Perks Car
Shares/options Company property Outplacement References Contribution to
legal fees
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Drafting the Letter
Identify reason for dismissal?
List what employee gets no matter what: Wages Vacation pay LSA notice and severance, if any Minimum benefits
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Drafting the Letter
Set out the “offer” Outplacement and reference (if any)
Conditional or not? IP / confidentiality / fiduciary
obligations Return of Property Record of Employment (ROE) Deadline for acceptance
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Drafting the Letter
Use plain language Be gentle Employer contact Timing
Middle of day, middle of week
To sign, or not to sign?
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Release
Is one necessary? When?
“Soft Release” option – put release language in the termination letter
Release and statutory / earned benefits
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Release
What should be included? Release of liability (LSA, HRC) Indemnity (CRA, CPP, EI) Specific reference to statutory claims (LSA) No admission of liability Confidentiality / non-disclosure Non-disparagement Independent Legal Advice
They won’t sign, what do I do?
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Executing the Termination
Termination for Cause Pre-meeting considerations The termination meeting Post-meeting considerations Punitive/aggravated damages References:
Confirmation of employment Comment on performance
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Things in Between:Specialized Topics
Duty to Accommodate
Social Media
Long Term Disability (LTD)
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Duty to Accommodate
Undue Hardship
Mental Illness / Addiction
Child Care Obligations
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Social Media
Tool for Hiring (Background checks)
Tool for Firing (Causes) Facebook Revelations
Internet and cell phone usage
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LTD – Handling Disability Claims
Human Rights Considerations
When to Terminate / End Relationship
Frustration of Contract
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Conducting Workplace Investigations
Independence of Investigation Qualified Experienced Investigator Planned Investigation
Gathering of Evidence Due Process to all Parties Objective Assessment of Evidence
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Conclusion
When in doubt, makethecall.ca !
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