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Employer mistakes can be avoided

Canadian employers may rule their own workplaces but they definitely don’t rule the courts.

Canadian employers may rule their own workplaces but they definitely don’t rule the courts. Despite workplace laws favouring their legal position, many employers make mistakes that hand employees a better case. Here are some of my favourite workplace blunders.



Paying only the statutory minimum on dismissal


You can’t make an agreement to pay someone what they are already entitled to. Employers often try anyway. This usually leads them straight to court where judges show them little sympathy and, as in one recent case, can even award additional damages simply for having tried to take advantage of an employee’s ignorance.

Probation

Employees are not automatically on probation when they start employment unless they sign an employment contract that permits termination, for any reason, during that period. Many employers misunderstand this rule, often to their detriment. Further, there is no right to unilaterally place an employee on probation after she starts work, which a recent court found was a constructive termination.

Resignations

In order to resign you must clearly and unequivocally wish to leave – and not to return. It is not a resignation if you are asked or encouraged to leave, nor is it a resignation if you are forced to leave.

Workplace investigations

To rely on misconduct as grounds for discipline or dismissal, allegations must be thoroughly investigated by a trained and neutral party. This rarely happens. Instead, human resources managers investigate by going through the motions, often just to say that they have. Courts routinely overturn the results of these “investigations” although, ironically, employees caught lying during the investigation will give their employers cause for dismissal when their initial behavior did not.

Not properly documenting discipline

To rely on misconduct as grounds for dismissal, demotion or even a negative performance review, courts require that progressive or corrective means should be used first. Letters should be sent that clearly identify areas of concern, offer suggestions for recovery and, not least, set out the consequences of an inability to improve. I am often surprised when employers’ later claim my clients engaged in “serious misconduct” but overlooked providing them with a simple letter at that time.



Daniel A. Lublin is an employment lawyer with Whitten & Lublin
LLP. Reach him at dan@toronto-employmentlawyer.com. Follow him on
Twitter @danlublin.

 
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