Embed Size (px)
DESCRIPTION
Half day open training event held in Toronto.
Citation preview
Effectively dealing with dismissals and terminations
by Toronto Training and HR
May 2012
Page 2
Contents3-4 Introduction to Toronto Training and HR5-7 Definitions8-17 Calculating termination pay18-19 Mass terminations20-21 Recall rights22-23 Employment contracts24-27 Rodrigues case (B.C.)28-29 Social media30-31 Constructive dismissal before resignation32-34 Examples of constructive dismissal35-36 Examples of summary dismissal37-44 The act of dismissal45-47 Transferring an employee where
performance has been poor48-50 The fairness doctrine guide51-52 Things to consider when terminating
employment53-54 Conclusion and questions
Page 3
Introduction
Page 4
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 banking• 10 years in training and human resources• Freelance practitioner since 2006• The core services provided by Toronto Training and HR
are:- Training event design- Training event delivery- Reducing costs- Saving time- Improving employee engagement &
morale- Services for job seekers
Page 5
Definitions
Page 6
Definitions 1 of 2Wrongful dismissalConstructive dismissalTerminationTemporary layoff
Page 7
Definitions 2 of 2THE LAW
Farber v Royal Trust CompanyEvans v Teamsters Local Union No.31Wronko v Western Inventory Service Ltd
Employment Standards Act 2000
Page 8
Calculating termination pay
Page 9
Calculating termination pay 1 of 9
EMPLOYMENT STANDARDS ACT 2000An employee who does not receive the written notice required under the ESA must be given termination pay in lieu of notice-this is a lump sum payment equal to the regular wages for a regular work week that an employee would otherwise have been entitled to during the notice periodAn employee earns vacation pay on his or her termination pay-employers must also continue to make whatever contributions would be required
Page 10
Calculating termination pay 2 of 9
EXAMPLE-REGULAR WORK WEEKElaine has worked for three and a half years but her job has now has been eliminated and her employment has been terminated-Elaine was not given any written notice of terminationElaine worked 40 hours a week every week and was paid $12.00 an hour plus she also received four per cent vacation pay
Page 11
Calculating termination pay 3 of 9
EXAMPLE-REGULAR WORK WEEKAs she worked for more than three years but less than four years, she is entitled to three weeks' pay in lieu of notice. Elaine’s regular wages for a regular work week are calculated:$12.00 an hour × 40 hours a week = $480.00 a weekHer termination pay is calculated:$480.00 × 3 weeks = $1,440.00
Page 12
Calculating termination pay 4 of 9
EXAMPLE-REGULAR WORK WEEK4% of $1,440.00 = $57.60Finally, her vacation pay is added to her termination pay:$1,440.00 + $57.60 = $1,497.60Result: Elaine is entitled to $1,497.60
Page 13
Calculating termination pay 5 of 9
EXAMPLE-REGULAR WORK WEEK4% of $1,440.00 = $57.60Finally, her vacation pay is added to her termination pay:$1,440.00 + $57.60 = $1,497.60Result: Elaine is entitled to $1,497.60
Page 14
Calculating termination pay 6 of 9
EXAMPLE-NO REGULAR WORK WEEKTony has worked at a nursing home for four years-he works every week, but his hours vary from week to weekHis rate of pay is $12.00 an hour, and he is paid six per cent vacation payTony’s employer eliminated his position and did not give Tony any written notice of termination-he was ill and off work for 2 of the 12 weeks immediately preceding the day his termination date
Page 15
Calculating termination pay 7 of 9
EXAMPLE-NO REGULAR WORK WEEKTony earned $1,800.00 in the 12 weeks before the day on which his employment ended, and he is entitled to four weeks of termination payTony’s average earnings per week are calculated:$1,800.00 for 12 weeks ÷ 10 weeks (Tony was off sick for two weeks therefore these weeks are not included in the calculation) = $180.00 a week
Page 16
Calculating termination pay 8 of 9
EXAMPLE-NO REGULAR WORK WEEKHis termination pay is calculated:$180.00 × 4 weeks = $720.00Then his vacation pay on his termination pay is calculated:6% of $720.00 = $43.20Finally, his vacation pay is added to his termination pay:$720.00 + $43.20 = $763.20Result: Tony is entitled to $763.20
Page 17
Calculating termination pay 9 of 9
WHEN TO PAYTermination pay must be paid to an employee either seven days after the employee is terminated or on the employee's next regular pay date, whichever is later
EXEMPTIONS
Page 18
Mass terminations
Page 19
Mass terminationsSpecial rules for notice of termination may apply when the employment of 50 or more employees is terminated at an employer's establishment within a four-week periodForm 1NoticeExceptions
Page 20
Recall rights
Page 21
Recall rightsWhat are recall rights?An employee who has recall rights and who is entitled to termination pay because of a layoff of 35 weeks or more may choose to:keep his or her recall rights and not be paid termination pay at that time;or give up his or her recall rights and receive termination pay
Page 22
Employment contracts
Page 23
Employment contractsKEY AREAS TO BE ADDRESSED:RemunerationConfidentialityRestrictive covenants (non-competition and/or non-solicitation)Probationary periodsTermination provisions
Page 24
Rodrigues case (B.C.)
Page 25
Rodrigues case (B.C.) 1 of 3POINTS TO CONSIDERResist the temptation to summarily dismiss disruptive employees and instead consider the following before making any decisionHas reasonable opportunity to improve been given? The longer the service of the employee, the more time must be given to address shortcomings- Rodrigues was a 16-year employee who was given a mere month to improve, then fired after only a day
Page 26
Rodrigues case (B.C.) 2 of 3POINTS TO CONSIDERWere there prior warnings?If an employee has never been informed their behaviour is unacceptable, the employer has effectively condoned the behaviour-the employer must inform the employee of the changed expectations
Page 27
Rodrigues case (B.C.) 3 of 3POINTS TO CONSIDERHow specific are the warnings?Vaguely telling an employee they must improve their attitude is insufficient-the employer must clearly spell out in what respects their conduct is deficient
Page 28
Social media
Page 29
Social mediaWest Coast Mazda
Page 30
Constructive dismissal before resignation
Page 31
Constructive dismissal before resignation
Russo v Kerr Bros. Ltd
Page 32
Examples of constructive dismissal
Page 33
Examples of constructive dismissal
1 of 2Unilaterally revising an employee’s contract to introduce a very narrow termination clause without consideration (i.e. without something in return, such as a bonus payment)Revising an employee’s job description to remove significant aspects such as supervising a team or leading an important ongoing part of the businessMoving an employee from a corner office to a cubicle
Page 34
Examples of constructive dismissal
2 of 2Decrease in compensationmoving an employee from straight salary to a lower salary with commissionchanging positions into a lower pay scaletransferring an employer to a jurisdiction with a higher cost of living but no salary increaseremoving a car bonuscutting hours
Page 35
Examples of summary dismissal
Page 36
Examples of summary dismissal
Theft, fraud or deliberate falsification of recordsFighting or assaulting another personDeliberate damage to company propertySerious incapability through alcohol or drug useSerious negligence causing unacceptable loss, damage or injurySerious acts of insubordination
Page 37
The act of dismissal
Page 38
The act of dismissal 1 of 7
Prepare for the meeting at which the dismissal is to take place very thoroughlyBe certain of the facts of the case and the precise reasons the decision to dismiss has been arrived atOrganize practical matters such as pay in lieu of notice before the meeting takes placeConsider in advance the likely reaction of the individual and prepare an appropriate response
Page 39
The act of dismissal 2 of 7
Talk to employees concerned firmly but sympathetically as it is important that they understand the decision is final, but they should be given as much practical assistance in planning for their future as is possible-including outplacement programs if appropriateWhere possible avoid the need for employees to leave immediately as this is likely to be humiliating and cause ill-feeling
Page 40
The act of dismissal 3 of 7
CHECKLIST:Prior to terminating an employee, review the employee’s employment contract to determine what severance obligations are owed-if theemployee is on a fixed-term contract consider whether there may in fact be a severance obligation to the employee by virtue of theexpiration of that contract or the fact that there have been a series of fixed-term contracts
Page 41
The act of dismissal 4 of 7
CHECKLIST:When there has been alleged misconduct in the workplace, employers should ensure that an objective and thorough investigation is completed-if assistance is needed to conduct the investigation, the help of an experienced workplace investigator should be sought
Page 42
The act of dismissal 5 of 7
CHECKLIST:Following an investigation into the alleged misconduct and prior to making the decision to terminate an employee for cause, the employershould consider whether there is an option other than terminating the employee-the level of discipline imposed must be proportional to themisconduct
Page 43
The act of dismissal 6 of 7
CHECKLIST:Always consider the employee’s explanation of misconduct before terminating employment If the decision is made to terminate an employee, consideration should be given to other potential issues that may arise in the termination so care can be taken to deal with them. These issues may include human rights considerations and employees who are on leave
Page 44
The act of dismissal 7 of 7
CHECKLIST:Prepare a termination letter in advance of the meeting and have it ready to give to the employee at the meeting-also, plan the termination meeting in advance including what will be said, when andwhere the meeting will be conducted, who will conduct the meeting, and possible questions that may arise
Page 45
Transferring an employee where
performance has been poor
Page 46
Transferring an employee where performance has been
poor 1 of 2National Bank v Chandran (Alberta)Ensure the employee is provided full details of the case against them and is permitted to respond If the employee disputes the facts, conduct an objective investigationUnderstand that a disciplinary letter warning of termination may ensure a demotion becomes a constructive dismissal, even if it is too minor a demotion to be so otherwise
Page 47
Transferring an employee where performance has been
poor 2 of 2In deciding whether a demotion might be a constructive dismissal, consider what effect it may have on an employee's career progression-the court placed considerable weight on the impact the transfer would have on Chandran's chance of reaching his career goals
Page 48
The fairness doctrine guide
Page 49
The fairness doctrine guide 1 of 2
Has appropriate training been provided?Is the standard of performance reasonable?Has the standard of performance been tested and found fair?Has the standard of performance beencommunicated?Do employees understand the standard of performance?
Page 50
The fairness doctrine guide 2 of 2
Are all employees meeting the standard of performance?Has a fair investigation been conducted?Is there actual documented proof of a deficiency?Has the investigation been void of discrimination?Is the discipline appropriate?
Page 51
Things to consider when terminating
employment
Page 52
Things to consider when terminating employment
Cause is almost impossible to proveConsidering there is likely to be a pay-out, typically never state why the employee is no longer wanted in the organizationHow much notice?
Page 53
Drill
Page 54
Drill
Page 55
Conclusion and questions
Page 56
Conclusion and questions
SummaryVideosQuestions
