hr compliancy

HR Compliance: Legal Issues Overview

September 24, 2013

Matthew Vella, Principal, Vella Labour Law

Maysa Hawwash, Solutions Manager, Drake International

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Topics

• Employee Acquisition

• Employee Management

• Terminations


Employee Acquisition

• Job Postings and Interviews

• Some key mistakes that employers

make during the acquisition of a new

employee

– Contracts are only for

management

– “Offer letters” suffice as contracts

– Contracts are to be given out with

the employee’s first day

paperwork


Contracts are Only for Management

• NO!

• Contracts are an integral part over every employment

relationship. Setting out the terms and conditions of

employment is integral.

• We have seen a dramatic increase in law suits from blue

collar employees and administrative staff.


Offer Letters – Don’t Use Them

• Avoid very short offer letters

• You have now “contracted” with the employee but only

for the terms set out therein

• Possible ramifications:

– No temporary layoffs

– The sky is the limit on reasonable notice damages

– Alterations of position will vitiate the contract


Offer Letters Followed by Contracts

• This is a crucial pitfall

• John is given an offer letter on June 15th stating that he

will commence his role as director of IT on July 5th at a

salary of $78, 000.00.

• On July 5th John attends work and is given a contract

with various other terms.

• The July 5th contract is void. John already had a

contract (the offer letter) and the moment he set foot at

work that contract became binding. The July 5th contract

suffers from a failure of legal consideration and will be

unenforceable when John is terminated


Contracts on the First Day of the Job

• Often employees are given a package on their first day

of work

• Do not include the employment contract in this

package.


What Do We Do?

• Provide an offer letter that specifically says it is subject

to (and that the employee’s new position is subject to)

the signing of a full employment contract

• Provide the employment contract prior to the employee

commencing work.

• Any policies that are incorporated into the contract by

reference should also be provided to the employee at

this time


Contract Pitfalls

• Contracts can (and should) include provisions respecting

a broad variety of topics, but contracts must be tailored

to the position for which they are being used.

• An ESA Mins clause on termination and severance pay

limiting the employee to the statutory minimum payments

on termination

• A layoff provisions allowing for temporary layoffs

• Don’t use templates. Period.


Employee Management

• Proper methods of managing for positive workforce and

employee engagement

• From a legal perspective when we talk about employee

management we are talking about either:

– Disciplinary issues or

– Performance issues

The two are not the same and should not be treated the

same


Employee Management

• Disciplinary issues should follow a program of some sort

of progressive discipline

• Escalate from verbal warnings to written, to further

written to suspensions and terminations

• For non-culpable behavior it is different. Coaching,

warnings, performance improvement plans, termination

but almost never for cause

• In Ontario at least, “for cause” terminations based on

performance issues are almost impossible to win unless

the employee is relatively new


Employee Management – Pitfalls

• Micro-managed employees will take stress leaves, file

harassment complaints, and make constructive dismissal

suits

• You have the right to manage. You have the right to

discipline. But don’t overdue it.

• Constructive dismissal based on “poisoned working

environment”

• Beware of overzealous discipline

• Beware of PIPS that God himself could not possibly

complete


Terminations

• No problem, because you have a contract!

• If an employment contract has a valid and enforceable

termination provision you will save a lot of headache and

legal fees.

• If you do not have a contract then you need to figure out

a reasonable severance package


Terminations

Common pitfalls/mistakes

• Telling an employee why he or she was fired when the

termination was no for cause.

• Not obtaining a release because you think your

severance package is reasonable so the employee won’t

sue.

• Seeking a release when all that is provided is that the

employee was entitled to under his contract or pursuant

to the ESA.


Termination Pitfalls

• The other major pitfall that I encounter all the time is the

“one size fits all” approach.

• “We provide two weeks per year of service and never

more”

• The courts use factors called Bardal factors to determine

reasonable notice. Those factors are: age, length of

service, position, qualifications and availability of similar

employment.


Termination Pitfalls

Public terminations

• Emails about the termination that slander or embarrass

the employee even after she is gone

• Lying during terminations or about the reason for the

termination

• Terminations based on zero tolerance policies

• Terminations based on accusations of misconduct for

which the employee was not given a chance to respond

prior to termination


Questions?


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Thank You For Attending

For questions, please contact Maysa Hawwash

National Manager – Talent Management Solutions

[email protected]

416.216.1067

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