Tuesday 23 December 2014

Inducement, Not Length of Service, Drives Long Notice Period

In a recent decision that ought to stand as a cautionary tale for employers when they hire senior employees, the Ontario Superior Court of Justice made clear that efforts to lure an employee away from secure employment elsewhere can prove costly. The case also highlights (once again) the importance of ensuring that termination provisions in employment contracts are carefully drafted.

In Rodgers v. CEVA, the plaintiff was hired by the defendant in 2009 to be its Country Manager, Canada.  At the time, Rodgers was the President of another company in the logistics business, and had been with his employer for over 10 years.  He was approached by a former colleague, who was then working for CEVA, about the possibility of a position with the company, and he expressed an interest in the role.  After 7 interviews, including two in Houston, Texas (the last of which was conducted by the CEO of CEVA), the company made the plaintiff an offer.  He declined it.  In turn, the company presented a more lucrative offer, including a $40,000 signing bonus, higher salary and a number of perks. As a condition of the offer, however, Rodgers was required to acquire a quantity of the company's equity (to ensure that he had "skin in the game"), which cost him approximately $100,000.  Less than three years later, following some difficult economic times for the company, the plaintiff was terminated and offered 2 weeks' termination pay and approximately $5,000 in severance pay.  At the time, he was 55 years old, and was earning an annual salary of $276,000.  He sued for wrongful dismissal.  The employer's only dispute with the plaintiff was on the actual amount of notice to which he should have been entitled.

The employer relied on the termination provision in the contract which provided:
Your employment may also be terminated by our providing you notice, pay in lieu of notice, or a combination of both, at our option, based on your length of service and applicable legal requirements.
The employer argued that the primary consideration in assessing appropriate notice was the plaintiff's length of service (less than 3 years).  However, the Court did not agree.  If the parties intended length of service to have primacy, they could have done so in clear language.  Instead, they had made the calculation dependent on both tenure and "applicable legal requirements".  After considering the fact that the plaintiff was induced (at least mildly) to join CEVA, and then led to believe that he would have long-term, secure employment (based on the requirement to purchase shares in CEVA at a cost equivalent to approximately 4 1/2 months' salary), the Court was of the opinion that the plaintiff should receive notice at the high end of the scale.  The plaintiff did not find another comparable role for almost 10 months, and even then he took a significant reduction in salary.  In the result, the Court awarded the plaintiff damages equivalent to fourteen (14) months' notice.  After a reduction for amounts already paid and the plaintiff's mitigation income, the defendant was ordered to pay the plaintiff $345,000.

The Court's decision illustrates that employers must be cautious when they recruit senior employees who are already gainfully employed.  Efforts must be made to ensure that an offer of employment is not designed to induce the individual to leave other employment, and this should also be acknowledged in the employment agreement. Ensure that recruiters do not make promises or representations about the likelihood of long-term employment, particularly during challenging economic times.  And if the intention is to minimize the organization's exposure in the event of a subsequent termination, care must be taken in crafting termination language that is clear and meets the requirements of the Employment Standards Act (see for example, this post on the topic).  The downside?  Significant liability.

Do you have questions about inducement?  Need help with your termination language?  Contact Lance Ceaser for expert advice.






Friday 12 December 2014

Considerations on Ending the Employment of Senior Workers

With the elimination of mandatory retirement (through amendments to the Human Rights Code in 2006), many older workers have made the choice to remain in the workforce longer.  Obviously, the increase in tenure that this change permits will lead to increased termination costs, as employees with longer service are entitled to heftier periods of reasonable notice at common law.  However, employers also need to be aware of other issues that may arise from employees’ decision to defer retirement and continue working.  When it comes time to end the employment of an older, more senior employee, employers should be aware of some of the risks, as illustrated in three recent decisions from Canadian courts.

The Older Worker's Duty to Mitigate:  Dodge v. Signature Automotive Group Ltd.
The plaintiff was approaching 60 years old when his employment was terminated without cause or notice due to his declining sales of 'add-ons' to new car buyers.  He had worked for the employer car dealership for just over 20 years, and was offered a package equivalent to less than 6 months' pay.   The employer argued that the plaintiff had made inadequate mitigation efforts and that any damages for lack of reasonable notice should be reduced.  In the first six months following his termination, the plaintiff did not even prepare a resume and over the course of the first year post-termination, he only applied for seven (7) positions.  Despite the fact that there were numerous other car dealerships in the area, including some that had advertised job openings, the plaintiff made little effort to contact other potential employers seeking work. 
The Court agreed with the employer that the plaintiff's rather "passive attitude" toward his job search did not reflect a reasonable mitigation effort on his part.  The Court found that the plaintiff would be entitled to 17 months' reasonable notice based on his age, length of service, level of responsibility and the availability of other work in the industry.  However, considering his insufficient mitigation, the Court reduced that figure to 14 months' notice.  In most cases, the reduction for lack of mitigation would have likely been greater than 3 months' notice, but the Court made the following observation:
...  I spoke earlier about the Plaintiff's age. As Brenner J. said, at para. 39 in Carlysle-Smith, above, "[i]f an employee has not taken reasonable steps, but if the court is satisfied that even if such steps were taken that it is unlikely that such alternative employment would have been achieved, then presumably little or no reduction in the notice period would be appropriate." In my view, the fact that Mr. Dodge is 60 means that it was less likely that alternative employment would have been achieved. It is only for that reason that I have not reduced more substantially the applicable notice period.

This case arguably stands for the proposition that although an older worker still bears responsibility to look for other work, lack of mitigation will not have the same adverse consequences as it would for a younger worker because of the likelihood that the terminated employee would not find another position anyway because of his/her age.
Loss of an Unreduced Pension:  Arnone v. Best Theratronics Ltd.
The plaintiff was 53 and had 31 years of service when he was terminated by the employer.  At the date of his dismissal, the plaintiff was less than 17 months from having earned an unreduced pension.  As a result of his termination, and the employer's refusal to bridge his service, he received a reduced pension.  In addition, because the plaintiff was terminated prior to his retirement, he was denied a 'retiring allowance' of 30 weeks' salary that would have otherwise been payable.  The employer offered the plaintiff only the termination pay required under the Canada Labour Code (about 14 1/2 weeks' salary continuance).  The plaintiff brought a motion for summary judgment, seeking payment of 24 months' reasonable notice, the difference between a reduced pension and the unreduced amount (based on actuarial calculations), as well as the retiring allowance.  The employer argued that there was a "genuine issue for trial", including a determination of the nature of his position (supervisory vs. managerial) and whether his mitigation efforts were adequate.
The Court found that the trial record did contain sufficient evidence to permit a fair resolution of the outstanding issues.  With respect to the amount of reasonable notice that the plaintiff was entitled to, the Court stated:
Of particular importance in the circumstances of this case is the fact that the plaintiff was 16.8 months from achieving full pension entitlement. This doesn’t mean that the plaintiff had to retire in 16.8 months but rather that upon the expiration of that period of time he would be entitled to receive an unreduced pension. Time to retirement is an obvious consideration when long-term employees are dismissed due to restructuring. In such circumstances it is also common that the employer does not have an expectation of mitigation because the bridging period ... may be less than the notice period that would otherwise be applicable.
...
There is no reasonable doubt that the plaintiff would be entitled to at least seventeen months’ notice (subject to mitigation considerations) regardless of the subtle distinctions urged by the defendant respecting the character of the plaintiff’s employment.
In the result, the Court awarded the plaintiff pay in lieu of the bridging period of 16.8 months' pay, $65,000 for the value of an actuarially  unreduced pension, 30 weeks' pay as a retiring allowance, pre- and post-judgment interest, and legal costs of almost $53,000.
Where an employer terminates the employment of a long-service employee who would become eligible for an unreduced pension within the reasonable notice period, the employer should seriously consider bridging the employee to retirement age, or risk becoming liable for the loss that flows from providing a reduced pension.
Effect of Employee's Decision to Retire:  Kimball v. Windsor Raceway Inc.
The plaintiff employee had worked for the Raceway for 42 years (with some brief interruptions due to medical leave or layoff), and was 70 years old when his employment was terminated as part of the fall-out from the OLG's decision to remove slot operations from Ontario's horse racing facilities.  Prior to his termination, the plaintiff had expressed an intention to retire, but had extended his retirement date several times.  Most recently, the plaintiff had told the employer that he intended to retire at the end of 2012.  However, his employment was terminated effective August 31, 2012, several months before his retirement was to occur.  The plaintiff brought a motion for summary judgment on his wrongful dismissal claim, arguing that there was "no genuine issue for trial" since there was no argument that his employment was terminated without cause and the employer had conceded that the plaintiff was at least entitled to statutory severance pay under the Employment Standards Act, 2000.  The employer defended the motion, arguing that a trial was necessary to weigh evidence of the plaintiff's potential retirement and how that would affect the reasonable notice to which he might be entitled.
The Court found that the plaintiff had a clear entitlement to his statutory severance, and there was no compelling reason to make him wait until after a trial to receive this money.  The Court therefore granted partial summary judgment in the amount of 26 weeks' pay.  However, with respect to the plaintiff's claim for reasonable notice, the Court held that there was a genuine issue for trial and that further evidence would be necessary to properly adjudicate various aspects of the case, including mitigation and the impact of the plaintiff's likely retirement.  After considering the rationale behind the concept of reasonable notice (i.e., to give the employee a fair opportunity to find other work), the Court observed:
If the dismissed employee has no intention to look for work, but has instead decided to retire, the very purpose for which reasonable notice is required to be given is absent. That is a factor that may well be relevant in assessing what constitutes reasonable notice in this case.

Accordingly, the motion for summary judgment on the common law claim was dismissed.  It remains to be seen how much an employee's stated intention to retire may affect his/her entitlement to damages for reasonable notice.
* * *
Do you have questions about an employee's entitlements upon termination?  Need guidance on the challenges of dismissing an older, long-service employee?  Contact Lance Ceaser for assistance.
 

Thursday 11 December 2014

Alberta Human Rights Tribunal Finds School Liable for Harassment of Teacher by Student

While it is obvious that an employer can be held responsible for harassment perpetrated by one employee against another, the law is not well settled on the extent to which liability will attach for the actions of third parties, such as contractors, customers or people who receive services from the organization.  There is precedent for an employer being held responsible for such conduct under the terms of a collective agreement and the Human Rights Code (see for example, Clarendon Foundation v. Ontario Public Service Employees  Union, Local 593 (Mitchell Grievance), (2000), 91 L.A.C. (4th) 105 (Sarra), but few decisions have gone this way.

Employer Liable for Third-Party Harassment

In a recent decision of the Human Rights Tribunals of Alberta, however, has gone further than most.  In Malko-Monterrosa v. Conseil Scolaire Centre-Nord, the complainant was a teacher who was subjected to unwanted, harassing behaviour by a student ("S") over the course of almost two years.  It started with prank phone calls to her home.  The teacher advised the student to stop calling her, and also advised the student's parent (on more than one occasion) about the behaviour and the need for it to stop.  The complainant also brought it to the attention of the school's principal and vice-principal, but they were of the view that the teacher had addressed the situation and only offered to make counselling services available to the student (whose parent advised that she had psychological issues).  Several months later, the teacher again began receiving prank phone calls.  On one occasion, she confronted the caller, who identified herself as a friend of the student, who had provided the teacher's phone number.  The vice-principal of the school spoke to all of the students involved, including S, and they all received suspensions.  The vice-principal also recommended that the teacher change her home telephone number.

The following school year, and over a period of several months, the teacher began receiving harassing and vaguely threatening messages from the student via Facebook and through her work email account.  School administration had discussions with the student and her parent, and kept up regular contact with the teacher to monitor how she was doing.  In January 2009, the teacher received several such messages, and attempted to block the sender by changing her privacy settings and by seeking assistance from Facebook.  After being asked twice, the school's administration had IT block emails to her work email from the sender (who was later conclusively identified as S).  Once it was clear that a number of the offensive messages were coming from an IP address associated with the student, the school administration met to discuss a strategy to protect the teacher.  When S admitted to being the sender of the email messages, she was given a 5-day suspension and a recommendation was made to the school board that S be expelled from the school.  She was also subject to conditions intended to keep her from contacting the complainant directly or indirectly (for example, through the complainant's mother, who was a receptionist at the school S was sent to attend).

Following the student's expulsion, however, the teacher received two more Facebook messages from the student, as well as an offensive, vulgar letter slipped under her classroom door by some other students who were friends with S.  The board was also advised that S had swore at the complainant's mother.  Rather than expelling the student from the second school, however, the board demanded that she provide an apology to the complainant's mother and only issued a 3-day suspension for her breaches of the conditions of her expulsion. Shortly thereafter, the school board learned that S had sent email to two other students alleging that the teacher had sexually assaulted her.  The school contacted police, who investigated and immediately dismissed the allegations as being retaliation.  Despite the teacher's attempts to have the school issue a cease and desist letter to the student, no immediate action was taken and the teacher had to seek a peace bond on her own.  Ultimately, the student transferred out of the school system at the end of the school year.

While there was no question that the school board and its administrators had taken some action to address the harassing behaviour that was directed at the complainant, the Tribunal found that those actions were not effective in creating a workplace free of harassment.  The employer had the authority to sanction S and thereby protect the teacher, but its efforts were "piecemeal", dealing with discrete incidents, and not "coordinated or centralized" in any way to reflect the pattern of escalating harassment.  Too many different administrators were involved, leading to corrective action that was not progressive or meaningful.  When the student had clearly breached the conditions of her expulsion from the school, and should have been facing removal from the school system, the board instead imposed only a suspension.  The Tribunal also observed that it appeared the school board put its concern for the student (who appeared to be emotionally and psychologically "fragile") ahead of its concern for the teacher's safety and well-being.  In the result, the school board (as the employer) was found liable for its failure to address the racial and sexual harassment of the teacher.

What does it mean?

The decision in the Malko-Monterrosa case provides some valuable insights for employers.  When addressing issues of this nature, it's important to assign responsibility for managing the situation to only one or two people within the organization.  This will ensure that responses are coordinated and show an appreciation for the overall pattern of conduct, rather than just the most recent incident.  Complaints about the behaviour of third-parties should be conducted with sensitivity, but with a sense of urgency, and resolution should be offered in a timely manner.  Failure to take the complaint seriously or taking the position that the organization's "hands are tied" will only exacerbate a tense situation.  If the organization doesn't have the 'in-house' resources to investigate or remedy the concern (for example, where forensic IT assistance may be required), look outside the organization to locate the required expertise. 

Ensure that the organization carefully weighs any competing obligations.  Service providers, contractors and other third parties should be made aware from the outset of their duty to treat employees in a respectful way, and that harassment or discrimination will not be tolerated.  Where the employer services a clientele that may be prone to lashing out at staff, ensure that staff know that the employer will take all reasonable measures to protect them from discrimination and harassment.  This may sometimes require the employer to distance itself from the third-party or take serious steps to sanction the behaviour in order to address the employee's concerns.

Do you have concerns with third-party behaviour in the workplace?  Need assistance in investigating or resolving harassment issues?  Contact Lance Ceaser for expert assistance.



 


 
 
 

Monday 8 December 2014

Tales from the Electronic Workplace

Whether it's social media usage or just 'old-fashioned' email, some people still seem to underestimate the impact that misuse can have on their personal and professional lives (as well as the lives of others).  Some recent cases illustrate the point.

Labour Arbitrators Gail Misra and Elaine Newman recently had to deal with grievances brought by firefighters in the City of Toronto who were terminated for posting offensive comments on Twitter, which ultimately came to the attention of and were publicized by the National Post.  The employees had posted or re-tweeted comments or jokes that were disparaging of women, the disabled and visible minority groups. The tweets were discovered by the National Post, which then questioned how inclusive the Toronto Fire Service actually was.  This was particularly problematic for the employer, as it was in the midst of launching a diversity campaign to recruit women and other groups in accordance with the make-up of the community it serves.  The City was of the view that the tweets in question, from individuals who had identified themselves as Toronto firefighters, not only violated the City's policies, but also did harm to the City's reputation.

In the first of the grievances to be heard, Arbitrator Misra found that the employer had cause for some form of discipline, but ruled that discharge was too harsh.  It was common ground between the parties that the grievor had made the comments in his off-duty time, but that the grievor would have been aware of the importance of not bringing discredit to the Fire Service.  The Arbitrator found that the tweets were shared with co-workers, and had a connection with the workplace, and that their appearance in the National Post article did have potential ramifications for the City's reputation.  The Arbitrator also rejected the grievor's argument that he was unaware that his tweets were accessible to the public, given that he had an opportunity to review the terms of use for Twitter when he signed up.  Moreover, Twitter was designed to allow individuals to communicate publicly (in 140 characters or less) on timely topics.  The grievor may not have been aware of the Standard Operating Guideline specifically directed to social media use, but he knew that there were stringent expectations of firefighters whenever they were in the 'public eye'.  Accordingly, his inappropriate tweets (about 'swatting' a young woman in the head to "re-set her brain") did amount to cause for discipline.  With respect to two other tweets, however, the employer did not establish that the grievor's use of language had been offensive, within the context that he used the 'objectionable' terms.  Although the grievor did not fully understand why any of his comments on Twitter were inappropriate, he did apologize to the employer and his colleagues for the media storm that he had created.  In the result, the Arbitrator held that the penalty of discharge was excessive, substituting a 3-day unpaid suspension.

On similar facts, however, Arbitrator Newman found that discharge was warranted with respect to the other firefighter (decision not yet reported).  After reviewing the arbitral case law on off-duty conduct, Arbitrator Newman observed that the grievor ought to have known that his behaviour on Twitter was inappropriate.  Not only did it potentially bring discredit to the Toronto Fire Service, but it also violated the employer's anti-discrimination policy. At the hearing, the grievor's testimony suggested that he still lacked any insight into how improper his conduct had been, particularly for a firefighter.  In particular, Arbitrator Newman found that the grievor appeared to be incapable of behaving in a way that "brings honour to the uniform," and that his behaviour would reflect poorly within the community that the Fire Service was obliged to serve.  Given the damage that his actions had done to the employer's reputation, Arbitrator Newman upheld his discharge

In R. v. Dewan, the Ontario Court of Appeal was considering an appeal by the accused on his sentence for criminal mischief and harassment.  The appellant had tried to strike up a relationship with a co-worker which was rejected. The appellant continued to pursue the co-worker, until she advised him that she had contacted the police.  At that point, the appellant sent an email out that purported to come from the co-workers.  In the email (that was sent to 9 other co-workers) "degraded the co-worker professionally, sexually, and physically".  The appellant was also convicted of harassment with respect to similar behaviour toward a woman with whom he'd had a romantic relationship, after relations soured.  The appellant had served the equivalent of 2 months in jail, and was given a suspended sentence and 2 years' probation on the mischief charge, as well as 90 days (to be served intermittently) on the harassment charge.  The Ontario Court of Appeal dismissed his appeal, finding:
Having regard to the nature and seriousness of these offences, we are of the view that, even taking account of the appellant’s positive prospects and five months’ time served, imposing a conditional discharge would be contrary to the public interest. Intimate partners must be free to terminate a relationship without fear of abuse, whether physical or psychological, or retaliation of any kind. Even taking account of five months’ time served, imposing a conditional discharge would not reflect the level of denunciation these offences deserve.
These cases demonstrate that context is key in assessing what, if any, disciplinary response is appropriate when an employee engages in off-duty, online conduct that violates workplace rules.  Even pejorative terms in Facebook or Twitter posts should be carefully be reviewed to determine whether they would be offensive to a "reasonable person".  Where an employee's behaviour can be traced to a lack of understanding of the rules or even to the nature of how social media works, employers should be prepared to weigh these factors before doling out punishment.  However, where an employee engages in aggressive behaviour toward a co-worker (such as was the case in R. v. Dewan), whether in person or via email, an employer should take strong action to address the misconduct.  The Court of Appeal's denunciation of the appellant's conduct should serve as strong support for an employer imposing harsh sanctions, including termination.

Do you have questions about implementing social media policy or addressing inappropriate online behaviour?  Contact Lance Ceaser for expert guidance.  

 

 




 

Thursday 4 December 2014

Avoiding Risk at All Stages of the Employment Life-Cycle

As 2014 nears its end, I thought I'd offer some general guidance for employers.

Like pretty much anything else, the employment relationship can be neatly packaged up into three parts: the beginning; the middle; and the end.  Each of these stages of the relationship can be characterized conceptually by a predominant theme.  For purposes of this post, I'll call them "Expectations", "Performance" and "Cessation".  What occurs at the Expectations stage will have the largest impact as it can significantly change how the contract is performed and what happens when it ends.  Likewise, the Performance phase will influence when and how the contract ends.  Once the relationship has reached the Cessation stage, there is little that can be done to alter the outcome, other than to manage risks that have already been created earlier in the employment life-cycle.

So, how do you significantly reduce the risks inherent in the employment relationship?  Let's look at each stage and the critical steps that employers should consider.

Expectations

Prior to and at the time of hiring, employers need to consider how "expectations" are communicated to prospective or new employees.  Clear expectations eliminate misunderstandings and lay the groundwork for a transparent and accountable workplace.  Setting expectations takes some work, but removing ambiguity at the outset of the employment relationship sets the stage for employees to perform their duties and helps manage the risks (and costs) associated with ending employment.
  • Review job descriptions on a regular basis to ensure they accurately reflect the job as it is currently performed.  A role profile that does not align with the role may mislead a new employee as to the expectations for their performance.
  • Where appropriate, develop policies that are clear and unambiguous. Ensure that policies align with actual practices and procedures in the workplace and set reasonable expectations for both parties.  If a policy is difficult to enforce, it is likely to go by the boards.
  • Document variable pay programs, such as annual bonuses or incentives, and make sure that new hires are given an explanation of how they work.
  • Develop a solid, enforceable employment agreement.  Use plain language to spell out the terms covering wages, variable compensation, vacation and benefits entitlements, and the parties' rights and obligations on cessation of the contract.  Carefully review termination language in particular to ensure compliance with employment standards.  Failure to do so could lead to claims for 'reasonable notice' in the courts.
  • Ensure that all required documentation is reviewed with new employees and signed off before they commence employment.  If policies are referenced or incorporated into the employment agreement, ensure that new hires are provided with the policies and acknowledge having read and understood them.
Performance

Once the formalities of hiring are out of the way, the real hard work begins.  While there is much that can be said about how to get the best out of employees while they are working for the organization, I'd like to focus on just a handful of keys that are likely to improve productivity while reducing legal risks.
  • Whenever in doubt, be guided by fairness and reasonableness in administering the relationship.  It's sometimes easy to lose sight of the issue and focus on the employee, but this can prove disastrous. Enforce rules consistently, but with a contextual approach that weighs the circumstances, the history of the particular employee, how past issues were dealt with, and any mitigating or aggravating factors. Be prepared to be flexible in appropriate situations. Failure to insist on fairness can lead to morale issues (such as claims of favoritism or discrimination) and can also undermine the effectiveness of your workplace policies.
  • Provide good supervision. Sounds simple, but it isn't.  It starts with careful selection criteria when hiring or promoting supervisory and managerial staff. I would suggest that it's better to look for leaders rather than technical experts. Yes, experience in the field is important, but it's often hard to make an exceptional 'lone wolf' into a good manager, no matter how accomplished they are. Follow-up on supervisory hiring with training on the basics of managing people (including the basics of human resources and employee relations). Failing to provide solid supervision invariably leads to underperformance that is not managed (and cannot be relied on later as cause for termination) and a failure to keep an eye on the workplace (which often results in complaints of harassment or bullying).
  • Document, document, document. It's trite, but true. Failing to keep notes of conversations and coaching sessions can be costly later when you need to establish a pattern of inappropriate conduct or poor performance that you have tried to address.  Get in the habit of making brief notes to file, showing the date and time of discussions with employees. Ensure that all notes ultimately make it into a file that others can find later. Otherwise, you risk losing evidence that you'll need later when an employee challenges unwelcome discipline. 
  • Make sure that managers actually manage. This means bringing issues to employees' attention when they arise (not months later when patience has worn thin), documenting conversations about the issue, providing timelines for improvement, and following-up in a timely fashion.  Managing performance, behaviour and attendance are tedious and time-consuming processes, but they should be the primary expectation that is placed on supervisors and managers.
Cessation

If the employer has paid proper attention to the details in the first two phases of the employment relationship, the third stage, Cessation, will typically be less risky and costly, and much more manageable.  Still, there are a few things to bear in mind.
  • If the employer will be terminating the employment relationship, be prepared to pay.  It can be very costly to allege 'just cause' for termination.  The courts and tribunals will only find cause in the clearest of cases and on very compelling evidence. If in doubt, terminate on a without cause basis (and move to the bullet point immediately below).
  • If there is a contractual termination provision in the employee's contract, ensure that you understand the employer's obligations and abide by them carefully.  No termination provision?  You'll have to choose between the statutory minimum (which is typically quite meagre), the employee's common law entitlement (typically quite generous) or something in between.  If in doubt, obtain legal advice.
  • Plan and prepare for the termination meeting to ensure that it is conducted in a professional and respectful manner.  Try to avoid ending employment on a Monday morning or a Friday afternoon (except in the most extreme cases), and be conscious of any occasions that could place the employer in a bad light (e.g., try not to terminate the employee on their birthday or in the weeks immediately preceding Christmas).  Hold the meeting somewhere that provides privacy and where other employees won't be alerted to what is going on. Ensure that you consider arrangements to get the employee home in the event that they carpool or won't be in any condition to drive. Avoid escorting the employee through areas where coworkers are present following the meeting.  Failure to abide by these relatively simple rules could lead to a claim for enhanced or added damages in the event the employee later alleges wrongful dismissal.
  • If the employee is looking to end the employment relationship, try to get their resignation notice in writing and verify that they have provided appropriate notice.  Ensure that they are given time to reconsider, particularly if they resign under stressful conditions or following a heated exchange. Whenever possible, conduct an exit interview to assess whether the climate in the workplace may have influenced the decision to leave.  It is valuable to find out whether there are unidentified issues that could lead the departing employee or others to raise concerns with harassment or bullying before you receive a claim.
  • Prior to any employee's departure, make sure that you recover company property.  In particular, smartphones, laptops, VPN tokens and system/application passwords should be obtained to avoid the potential for a disillusioned employee being tempted to take data or engage in other post-termination misdeeds.  Once the employee has departed, ensure that all access is removed and that passwords are changed, as necessary.
While the foregoing guidance is not exhaustive, and is no substitute for legal advice, it does provide an overview of some of the larger risk management issues that employers face.  Being proactive, setting clear expectations, and ensuring that those expectations are routinely met, will go a long way to avoiding or reducing many of those risks.

Does your organization need advice on how to reduce the HR risks it encounters?  Need guidance on a particularly thorny or complicated employment situation?  Contact Lance Ceaser for expert assistance.

Tuesday 2 December 2014

How to Make the Holiday Season Happy (and not get sued or fired in the process)

With the festive season kicking into high gear, you can't avoid crowded mall parking lots, the frantic search for the "perfect" gift, nor those well-worn holiday tunes playing virtually everywhere.  And you also may not be able to avoid the office Christmas party.  Whether you're the host employer or an attendee, there are a number of rules that everyone ought to keep in mind.

Employers

If you'll be hosting a gathering for employees, think about ways to reduce the risks commonly associated with the sometimes dangerous combination of people and alcohol.  Consider some or all of the following:
  • In advance of the party, communicate to employees that drinking and driving and other inappropriate behaviour will not be permitted (albeit in a tactful way).  Encourage them to bring a designated driver and/or let them know that taxis will be made available, free of charge  (both to and from the party venue, if possible).
  • Have your party hosted by a restaurant, hotel or convention centre that has its own trained staff to serve alcohol and monitor consumption.  They'll also have their own insurance.
  • Limit the flow of free drinks.  Offer a limited number of drink tickets per person, and only offer a cash bar thereafter.  Try to watch for 'ticket-hoarding' or sharing of tickets.  If alcohol continues to be served after the meal, ensure that food is also being offered.
  • Ensure that the bar has sufficient non-alcoholic alternatives on hand and that staff bring them to the attention of guests.
  • Give an incentive for designated drivers - provide gift cards or other tokens of appreciation to those who identify as a "DD" upon arrival at the party.
  • Provide taxi/limo chits to your guests - better yet if you can provide two-way transportation both to and from the party.  Once an employee shows up with a vehicle, it may be harder to convince them to go home in a cab.
  • Be watchful - despite all of the steps above, stay on alert to identify any guest who may have over-consumed.  Take whatever measures you can to prevent anyone from driving under the influence.
Employees

Having a few drinks with colleagues can add to the seasonal celebration, but don't lose track of where you are:  an event sponsored by your employer.  Everyone is there to have fun, but make sure you don't have TOO MUCH fun.
  • Plan ahead.  If you know that alcohol will be served and you're uncertain if transportation is being provided, ask the employer.  If all else fails, ensure that you plan a safe ride home for you (and your significant other, if they're invited).  Pre-book a taxi or car service , or find out if someone intends to be a DD and can give you a ride home.
  • Even if the employer is providing an open bar, you are responsible to ensure that you don't become intoxicated.  Be your own liquor control board.  Alcohol may bring out behaviours that you will regret later.
  • Remember that the company's policies regarding personal conduct still apply. Even if the party seems like the perfect opportunity to air your grievances from the preceding year, it's not.  This is a celebratory occasion. Avoid 'talking shop' if you can, and focus on your co-workers' plans for the holidays. 
  • Tread carefully if you're thinking of pursuing an office romance at the company Christmas party.  Alcohol may lead you to misconstrue social cues turning flirtation into something more sinister.  The rules against sexual harassment still apply.
  • Be careful what you post!  It's all-too-tempting to snap pictures of your colleagues after a few drinks and post them to social media, but think about the ramifications - for your co-workers and yourself. People's reputations may be damaged by inappropriate photos on Facebook, and your judgment could be called into question for posting them. Wait until the next day to post items about the party to ensure you don't hurt yourself or others. 
At the end of the day, exercising some common sense and good judgment will go a long way to avoiding what could be a very costly hang-over!

Do you have questions about the risks as an employer in being a 'social host'?  Need guidance on planning for party season?  Contact Lance Ceaser for expert advice.