In partnership with Stringer LLP, First Reference Inc. recently hosted the 19th Annual Employment Law Conference on June 12, 2018, where we discussed the latest legal developments including issues surrounding the termination of an employee.
We received a large number of questions from conference attendees during the Q&A session. Though we could not answer them all during the conference, the First Reference Blog will be updated weekly to provide further clarity on this year’s hot topics based on the questions we received.
If I am terminating without cause, can I tell the employee that his or her performance is not up to standards/has not improved on deficiencies previously brought to his or her attention? Or does this imply cause and open up doors to litigation.
Under the Ontario Employment Standards Act, an employer can terminate an employee by providing the employee with either written notice of termination, termination pay or a combination (as long as the notice and the number of weeks of termination pay together equal the length of notice the employee is entitled to receive under the ESA). Although the ESA does not directly state it, the Ontario Ministry of Labour guidelines indicate that when complying with the termination provisions in the law, “the ESA does not require an employer to give an employee a reason why his or her employment is being terminated.” and that, “There are, however, some situations where an employer cannot terminate an employee’s employment even if the employer is prepared to give proper written notice or termination pay. For example, an employer cannot end someone’s employment, or penalize them in any other way, if any part of the reason for the termination of employment is based on the employee asking questions about the ESA or exercising a right under the ESA, such as refusing to work in excess of the daily or weekly hours of work maximums, or taking a leave of absence specified in the ESA.”
Certain employees are not entitled to notice of termination or termination pay under the ESA if they are dismissed with cause. Not all employment/labour standards define ‘termination with cause.’ Those that do as in Ontario, refer to: willful misconduct, disobedience and deliberate neglect of duties as justifiable reasons for termination with cause.
An employee who is terminated with cause because of a serious misconduct is usually entitled to reasons justifying the dismissal. However, termination with cause is difficult to prove and the onus will be on the employer to show that the employee’s actions were very serious or show a pattern of behaviour or poor performance that has not been corrected. Therefore, the employee should already be aware of the reason he or she is being terminated. It should not be a surprise. Most terminations with cause are the result of the progressive discipline process, thorough documentation of the process which shows that progressive discipline was fairly and consistently applied to help the employee correct the misconduct or poor performance.
Consult The Human Resources Advisor Ontario, Atlantic or Western editions for a more in-depth discussion on compliance and best practices on the topic of termination with or without cause.
Please Note: This article is prepared for information purposes only; it is not legal advice. Consult a lawyer before acting on it or to obtain legal advice or a legal opinion.
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