Analysis of R V Kelkar's Criminal Procedure Code ppt- chapter 1 .pptx
Employment Law: Hiring and Firing
1. Job Skills
September 19, 2013
Turnberry Golf Course
Presented by
Stuart E. Rudner
Employment Law:
Hiring & Firing
2. The Hiring Process
Dealing with publicly available information
online
Courts recognizing Facebook and similar
postings not necessarily “private”
Don’t demand access or password
3. Caution
Risk of inaccurate information
Take everything with a grain of salt
Risk of stumbling
on inappropriate information
– Race
– Age
– Disability
4. Human Rights Code
Every person who is an employee has a
right to freedom from harassment in the
workplace by the employer or agent of
the employer or by another employee
because of…
You don’t want to know more than you
need to
5. Mitigating Risks
Have protocol for every applicant
Screen candidates in consistent manner
Have non-decision maker filter out
inappropriate info
Log reasons for not hiring
6. AODA & Accommodation
Employees do not have to reveal need for
accommodation in application process
Not “dishonest” or cause for dismissal
6
7. AODA
Positive duty to accommodate in hiring
process
Must advise applicants will accommodate
Must accommodate if requested
Separate accommodation from hiring
decision if possible
Even more critical to log reasons for
decision
7
8. Employment Agreements
Use them!
Do it properly
– Before there’s already an agreement
– With consideration
– Explained and understood
– Independent legal advice
13. Protecting the Organization
A. Have a policy
B. Use clear and unambiguous language
C. Update the policy as technology changes
D. Publicize the policy
E. Make employees aware of concerns
F. Ensure supervisors and managers are aware
of the policy and how to monitor;
G. Monitor behaviour
H. Discipline violators
14. 14
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”
15. 15
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”
16. 16
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
17. 17
Common Law: The Length of
Notice
Requirement: “reasonable” notice
of dismissal
The Bardal Factors
1) Length of service
2) Age
3) Position / Character of Employment
4) Availability of Similar Employment
18. What is “reasonable”?
No “rule of thumb” or direct 1:1
relationship between years of service and
months of reasonable notice
Beware the short-term employee
Inducement
18
19. The Changing Times
End of mandatory retirement, people
working longer --> Wrongful dismissal
claims by workers in 70s and 80s!
Recent decision:
I do not think there is a place in this social reality
for an automatic presumption that persons should
or would naturally retire on reaching senior age.
19
20. The Changing Times
Di Tomaso v. Crown Metal Packaging Canada
LP:
there is recent jurisprudence suggesting
that, if anything, (position/character of
employment) is today a factor of declining
relative importance.
20
21. 21
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
22. 22
Just Cause: Performance Issues
Employer must:
Set a clear, reasonable standard
Communicate expectations
Measure the performance
Take appropriate action
– Warnings (verbal and written) – document
everything!
– Counseling
– Training
Allow reasonable time for improvement
23. 23
For Just Cause
Capital Punishment of Employment Law
Employer must prove:
1. that the alleged misconduct took place,
and
2. that the nature or degree of misconduct warranted
dismissal, bearing in mind all relevant
circumstances
Proportionality is guiding principle – “punishment
must fit the crime”
24. The Contextual Approach
Employer must consider all circumstances,
not just alleged misconduct
– Length of service
– Disciplinary history
– Nature of position
Same set of facts can yield different
results
24
25. Can You Discipline for Off-Duty Conduct?
Generally, what you do on your time is your business
But if
– The conduct renders the employee unable to perform his
duties satisfactorily.
– The conduct interferes with the efficient management of
the operation or workforce.
– The conduct leads to a refusal or reluctance of other
employees to work with him.
– The conduct harms the general reputation of the Employer,
its product or its employees.
26. 26
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
27. 27
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