employment law in today's workplace
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TRANSCRIPT
One Voice NetworkJune 20, 2013
Richmond Hill Country Club
Presented by
Stuart E. Rudner
Employment Law in Today’s Workplace
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From Hiring to Dismissal
1. Hiring Process2. During the relationship3. Dismissal
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Recruiting
Posting so as not to be discriminatory Beware Inducement
– Even if use a recruiter AODA requires accommodation
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Accommodation
Employees do not have to reveal need for accommodation in application process
Not “dishonest” or cause for dismissal
Duty to accommodate to point of “undue hardship”
Separate accommodation from hiring decision if possible
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AODA
Positive duty to accommodate in hiring process
Must advise applicants will accommodate
Must accommodate if requested Can’t avoid knowing Even more critical to log reasons for
decision
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Accommodation
Process is to be 2 (or 3) way dialogue Employee must produce appropriate
medical documentation Not entitled to preferred form of
accommodation Must show appropriate efforts to
consider potential accommodations
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Dismissals 2 types: With cause or
without cause
If with cause, no further obligation to employee
Otherwise, need to assess employee’s entitlements to
notice/pay in lieu/severance
No “near cause”
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Dismissals 2 types: With cause or
without cause
If with cause, no further obligation to employee
Otherwise, need to assess employee’s entitlements to
notice/pay in lieu/severance
No “near cause”
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Without Just Cause
Notice of Dismissal or Pay in Lieu
Two sources of entitlement– Employment Standards Act /
Canada Labour Code– Common Law
Can contract out of common law
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Common Law: The Length of Notice
Requirement: “reasonable” notice of dismissal
The Bardal Factors No “rule of thumb” or direct 1:1
relationship between years of service and months of reasonable notice
Beware the short-term employee Inducement
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Without Cause: Options
Working notice– must allow opportunity to
look for new employment Salary & benefit continuance Lump-sum Combination Dangers of failing to continue
benefits
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For Just Cause
Employer must prove:– that the alleged misconduct took place,
and– that the nature or degree of misconduct
warranted dismissal The Contextual Approach: Must consider all
circumstances, not just alleged misconduct Proportionality is required Same set of facts can yield different results
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Just Cause: Performance Issues
Employer must:Set a clear, reasonable standardCommunicate expectationsMeasure the performanceTake appropriate action
–Warnings (verbal and written) – document everything!
–Counseling–Training
Allow reasonable time for improvement
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The Importance of the Investigation
Investigate first Ensure fairness, objectivity,
thoroughness Give opportunity to respond Often, employee response is critical
factor in determining appropriate discipline
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Human Rights Claims
Cannot dismiss based upon protected ground
Caution when applying performance requirements
Even if tiny part of reason was protected ground despite other legitimate reasons
Potential for “general damages” plus damages for loss of income from date of dismissal to date of hearing
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Stuart E. Rudner
www.rudnermacdonald.com
Twitter: @CanadianHRLawLinkedIn: Connect with me and join the
Canadian HR Law GroupBlog: Canadian HR Law
http://www.hrreporter.com/blog/canadian-hr-law
Google+: Stuart Rudner
Thank you