How can employers prevent constructive dismissal claims?

Upcoming event will look at steps employers can take to better protect themselves throughout termination process

How can employers prevent constructive dismissal claims?

With multiple cases being adjudicated recently regarding just cause and constructive dismissals, employers have to tread carefully when deciding what to do about potentially troubling employees.

For many organizations, careful consideration must be put into designing proper employment contracts but one thing is clear: if there are concerns over performance, it’s probably a good sign that something needs to change.

“If it’s not working out for you, it’s probably not working out for [the employee]; whether they realize it or not it, more likely than not, it’s just not working,” says Shana Wolch, partner in the labour and employment group at McCarthy Tétrault in Calgary

“If you believe that you’ve tried to right things, you’re usually doing everybody a better service by going forward with [termination] because even if they are still there, you have to question their level of satisfaction if your view is that it’s absolutely not working.”

Wolch will be part of an upcoming panel discussion with Thomas Duke, partner at Miller Thomson, and Tom Ross, partner at McLennan Ross, about navigating just cause and constructive dismissal, and will be updating employers about recent case law around these areas and what they could mean for organizations.

The event will take place online on Oct. 19, and is part of the Employment Law Masterclass series.

‘Live topic’

For Wolch, employment law continues to evolve and its prudent for HR professionals to be aware of the new landscape.

“Just cause and terminations are still quite a live topic and what I would like to do is go through some key takeaways to help employers better prepare for these types of situations,” says Wolch.

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The panel will also explore best practices for drafting enforceable termination clauses to minimize liability.

While negative performance discussions are often uncomfortable, they certainly will have to happen and its sensible for HR and employers to have them when they are needed, she says.

“No one really likes to talk about termination, no one usually likes to do termination but often they’re inevitable so [we will look at] the best ways to do them so that they don’t backfire,” says Wolch.

“One consideration for employers is that what they might draft at one time may not be considered sufficient later just because of the way cases evolve and so it’s obviously a good practice to always go back and make sure you’re reviewing your termination clauses from the lens of evolving law.”

And when dismissals do happen, the employee walking out the door is not always they last time they are heard from.

“Remember that terminations are constantly going to be litigated because they are very sensitive and factor into people’s lives, and so it’s better for everybody if they’re done as properly as possible,” she says.

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The panel will also examine the future of constructive dismissal in the post-COVID environment — and in many cases, the outlook has been promising for HR leaders and their organizations, says Wolch.

“In most cases that have gone through, the employer’s actions were considered appropriate so even though it’s a change to employment, and even though it could be considered in some ways big because it was not contemplated, the adjudicators have not been in many of the cases finding constructive dismissal.”

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