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The letter of the law

Failure to follow right procedures when firing someone often spells trouble for employers

By Jeffrey R. Smith

When an employer fires someone, it’s usually not an easy or pleasant process for either side. Even if the employer is glad to be rid of a bad employee, someone — usually from human resources — must break the news to the employee and make sure the dismissed employee leaves the property.

And then there are all the arrangements. An employer can try to claim just cause for dismissal, which would free it of the obligation of reasonable notice — but that in itself can cause headaches as it would need to ensure it had undeniable proof of just cause, which is pretty high in Canadian employment law. And if the dismissal is without cause, there are still all the  arrangements for severance, pay in lieu of notice, and so on that come with dismissing an employee.

It’s an accepted fact that when an employee is let go, the employer must provide a termination letter explaining the situation and preferably outlining the reasons for dismissal, particularly if it’s for cause. And if cause is being alleged, the employee must have been given previous warning and an opportunity to improve before being cut loose. If the termination is without cause, the notice or pay in lieu of should be explained in the letter.

Last year, a Saskatchewan moving company found itself with a worker who was acting insubordinately towards her manager. After a warning and a five-day suspension following an altercation with her manager and leaving work early without permission, the worker had another argument with her manager, demanding a day off during a busy time for the employer, which the employer refused. The manager wrote up another disciplinary letter, but didn’t give it to the worker. Instead, the next morning, he found her outside the office and told her not to bother coming back in because she was fired.

An arbitrator found the employer should have given the worker a letter of termination — or the second disciplinary letter — before dismissing her. Though it was determined the employee’s actions were not by themselves just cause for dismissal, the arbitrator also found the manner of dismissal (no termination letter and outside the office in front of others) was inappropriate. The employer was ordered to pay the statutory minimum notice requirement: see Mullie and Jay’s Moving & Storage Ltd., Re, 2014 CarswellNat 1196 (Can. Adj.).

In the above case, the final damage award was not significant, but the employer’s conduct in the dismissal and its failure to follow proper dismissal procedure with a termination letter factored into the arbitrator’s decision. In an era where bad faith in dismissal is frequently on the minds of fired employees and their legal counsel when it comes to wrongful dismissal damage claims, it’s important for employers not to provide any extra ammunition that can cost them, either by adding on to a wrongful dismissal damage award, or tipping the balance on a wrongful dismissal determination.

If an employer is found to have not acted properly in the manner of dismissal, it can increase damages or result in reinstatement if there wasn’t cause for dismissal. But if an employer doesn’t follow proper procedure for termination, should the termination be overturned, even if there was just cause?

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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