Employment Law – An Overview
April 20, 2012
Presented for: Professional
Municipal Administrators
Annual Meeting
Corner Brook, NL
Presented by:
Jamie Martin
1
Basic Assumptions
 No union
2
Basic Assumptions
 Independent contractor or employee?
3
Basic Assumptions
Constructive Dismissal:




Intolerable employment situation
Change in duties
Change in location
Implied terms of employment
4
Hiring
 Human Rights Considerations
5
6
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
7
Hiring
 Identify (where applicable) in letter:




Position
Salary
Benefits
Termination Provisions, if any
8
Restrictive Covenants
 Non-solicitation
 Non-competition
9
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
10
Pre-Termination Considerations
 Human rights considerations
 Termination for cause
 Termination without cause
 What is the employee’s entitlement?
11
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
Source: Human Rights Act, 2010
12
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
13
What Constitutes Just Cause?






Theft / Fraud / Dishonesty
Insolence / Insubordination
Incompetence
Lateness / Absenteeism
Conflict of Interest
Sexual Harassment
14
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?
15
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
16
Termination Without Cause
 Statutory Entitlement (LSA notice)
 Employment Contract?
 Reasonable notice at common law
17
Termination Payments
LSA Individual Termination Notice:
Length of Employment
Less than 3 months
3 months, less than 2 years
2 years or more, less than 5 years
5 years or more, less than 10 years
10 years or more, less than 15 years
15 years or more
Notice Required
None
1 week
2 weeks
3 weeks
4 weeks
6 weeks
Source: Labour Standards Act
18
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






19
Terminations
 Rule of Thumb??
20
Termination Payments
Reasonable Notice at Common Law:
 Age
 Length of Service
 Salary Level
 Position
 Inducement
 Wallace factor / Bad Faith
21
Termination Documents
 Structuring the severance package
 Drafting the termination letter
 Final release
22
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)
23
Working Notice Considerations
 Productivity
 Ability to look for other work
 Interviews
 Outplacement
 No guarantee of employment
 Retention bonus
24
Lump Sum vs. Salary
Continuation
 Prospects of re-employment
 Skills
 Education
 Age
 Access to benefits
 Personal circumstances
25
Mitigation Considerations
 Definition of “alternative employment”
 “Clawback” (i.e. windfall)
26
Structuring the Package
Other issues:
 Bonus/variable
compensation
 Benefits and pension
 Perks
 Car





Shares/options
Company property
Outplacement
References
Contribution to legal
fees
27
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
28
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
29
Drafting the Letter




Use plain language
Be gentle
Employer contact
Timing
 Middle of day, middle of week
 To sign, or not to sign?
30
Release
 Is one necessary? When?
 “Soft Release” option – put release language
in the termination letter
 Release and statutory / earned benefits
31
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?
32
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
33
Things in Between:
Specialized Topics
 Duty to Accommodate
 Social Media
 Long Term Disability (LTD)
34
Duty to Accommodate
 Undue Hardship
 Mental Illness / Addiction
 Child Care Obligations
35
Social Media
 Tool for Hiring (Background checks)
 Tool for Firing (Causes)
 Facebook Revelations
 Internet and cell phone usage
36
LTD – Handling Disability Claims
 Human Rights Considerations
 When to Terminate / End Relationship
 Frustration of Contract
37
Conducting Workplace
Investigations
 Independence of Investigation
 Qualified Experienced Investigator
 Planned Investigation
 Gathering of Evidence
 Due Process to all Parties
 Objective Assessment of Evidence
38
Conclusion
When in doubt, makethecall.ca !
39