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EMPLOYMENT TERMINATION BEST PRACTICES
Conference held in Toronto on September 14, 15 & 16, 2005
Chairs: Barry A. Kuretzky, Senior Partner, Kuretzky Vassos LLP; Howard A. Levitt, Counsel, Lang Michener LLP; Ken Manella, Labour Affairs Officer, Human Resources Skills Development Canada, Labour Program; Stewart D. Saxe, Managing Partner, Baker & McKenzie LLP
CD-ROM: Over 12 hours of video presentations plus over 70 pages of original material
To purchase, please contact Federated Press.
MANAGING COMPLEX TERMINATIONS
Managing difficult termination situations
Siobhan M. Brewer, Vice President, Human Resources, Royal LePage Residential Real Estate Services Ltd. / Royal LePage Commercial Real Estate Inc.
- General Success Factors for Handling Difficult Terminations
- Managing Human Rights Concerns
- Prior Considerations Before Deciding to Terminate an Employee
- Conducting a Termination Meeting
- Assessing the Impact on Remaining Employees
"From a human resources perspective there are three principal considerations to bear in mind when terminating employees: protecting company reputation, reducing liability and ensuring fairness and equity. These interconnected responsibilities should drive your planning process. Information is control. An adequate plan will provide the tools to deal with the unexpected."
Video: 42 minutes • Overheads
Panel discussion: Termination due to fraud or unethical behaviour
Dana Dramnitzke, Vice President, Human Resources, Arbor Memorial Services Inc.; Gemma Cesta, Senior Manager, Employment Standards Department, TD Bank Financial Group (TDBFG); James T. Beamish, Barrister and Solicitor
- Connecting Unethical and Fraudulent Behaviour to Business Objectives
- Employing Human Resources Policies and Practices to Mount a Fraud Defence
- Fraud and Unethical Behaviour Detection Mechanisms
- Best Practices for Employee Interviews During an Investigation
- Legal Considerations for Employee Surveillance
"Create policies and procedures that are clearly defined and will prevent employee action during or after termination. Many human resources practices already include measures that counteract unwarranted behaviour. By empowering these defence mechanisms, your organization will be able to reduce complexity and cost when fighting fraud or unethical behaviour."
Video: 58 minutes • Overheads
Managing terminations for poor performance
Sunil Khambaswadkar, Director Human Resources, Worldwide Algorithmics Inc.
- Ensuring your Corporate Objectives are Well-Defined and Adequately Updated
- Managing Soft-Performance Issues While Conducting Employee Evaluations
- Maintaining a Fair and Open Process Including Reasonable Expectations, Timelines and Support
- Review Prohibited Termination Grounds and Employee Rights Prior to Taking Action
- Executing a Well Managed Performance Improvement Plan
"There are many risks associated with the “just-cause” termination for poor performance. Avoid unwarranted action by providing a fair and open evaluation process. Corporate win-win situations can occur if a well managed performance improvement plan is completed. It can provide clear objectives, measured by defined criteria and expected timelines. If termination is still the only viable option, your organization has a better defence against employee recourse."
Video: 31 minutes • Overheads
Panel discussion: Avoiding liability from termination by drafting sound employment contracts
John Hannah, Vice President, Human Resources, Brink's Canada Limited; Cheryl A. Sproul, Vice President, Human Resources, Danier Leather Inc.; Barry A. Kuretzky, Senior Partner, Kuretzky Vassos LLP
- Including the Relevant Terms and Conditions in One Single Contract
- Ensuring Language and Conditions are Clear, Simple and Free of Ambiguity
- Protecting the Dignity of Employees While Protecting the Interests of the Company
- Managing Intellectual Capital and Non-Competitions Contract Regulations
- Avoid Constructive Dismissal by Enabling a Flexible Agreement
"Good employment contracts have tremendous benefits. It permits the employee and the organization protection. As drafters of the agreement, the organization must place the vital aspects of the business in the forefront of the contract discussion. Be aware that in the event of a disagreement, the court will favour the employee if language, terms or conditions of the contract are unclear."
Video: 50 minutes • Overheads
IMPLEMENTING THE TERMINATION PROCESS
Termination issues for employees on leave
Hugh Secord, Vice President, Human Resources, Securicor Cash Services Ltd.
- Determining and Differentiating Transitory and Permanent Absenteeism
- Understanding the Protection Criteria of the Workplace Safety Insurance Act
- Addressing Employee Termination due to Patterns of Chronic Absenteeism
- Factors to Review When Deciding a Frustrated Contract
- Considering Human Rights Legislation and Discrimination
"In our rapidly changing socioeconomic environment many employers are experiencing an increase in innocent absenteeism, as well as increases in short and long-term disability claims. These claims are not only becoming more frequent but are also tending to last longer. As human resource practitioners, we must realize that our job is to be the conscious of the organization. Determining if there has been an honest effort to accommodate the employee must be at the forefront."
Video: 43 minutes • Speaker's paper 9 pgs. (4,279 words)
Panel discussion: Terminating related to harassment, bullying, threats and violence in the workplace
Helen M. Patterson, Senior Director, Employee Relations – Human Resources Policy and Governance, Canadian Imperial Bank of Commerce (CIBC); Stephen Fletcher, Employee/Labour Relations Advisor, Human Resources Services, McMaster University; Lorenzo Lisi, Partner, McCarthy Tétrault LLP
- Building a Robust Corporate Violence Policy
- Developing Infrastructure that Mitigates Interpersonal Relationships
- Properly Investigating Harassment Behaviour to Establish Just Cause Termination
- Managing a Unionized Response to Behavioural Assessments
- Clarify Corporate Objectives and the Impact Anti-Social Behaviour has on the Workplace
"Establish ahead of time the evidence required to justify the termination. The rules that guide your investigation into violent behaviour should be the same as other terminations procedures. Avoid the tendency of relying on the language of violent behaviour for the termination. If you are missing one of the pillars of the just cause argument your case will fall."
Video: 52 minutes • Overheads • Speaker's paper 17 pgs. (3660 words)
Terminations with dignity
Sandra Smith, Manager, Human Resources, Trillium Health Centre; Catherine Mossop, Designer, Sage Mentors Inc.
- Engaging in Comprehensive Development Programs
- Focussing on the Development of People and Building Leaders by Establishing a Supportive Culture
- Decreasing Terminations by Aligning Strengths to Roles and Creating Secondary Opportunities
- Considering the Business Implications of Terminating Employees
- The Benefits of Scenario Planning and Termination Strategies
"If time is not spent thinking of the implications of removing an individual from the organization, it may result in creating a whole host of unanticipated problems. Scenario planning and strategies that attempt to mitigate complexity can protect the dignity of the employee and the dignity of the organization within the community context in which it exists.
Video: 52 minutes • Overheads
New developments in wrongful dismissal law that affects employers
Howard A. Levitt, Counsel, Lang Michener LLP
- Court Requirements on Employer Good Faith: Pre and Post Termination Conduct
- Reference Letter Provisions For Dismissals With and Without Cause
- Legal Decisions on Entitlements, Outstanding Pay and Statutory Payment Requirements
- Clarity on Employee Dishonesty: A Contextual Approach
- Trends in Termination Notice Period for Middle and Upper Levels of Employment
"The bottom line is maintaining the dignity of the employee. Recent jurisprudence from Wallace v. United Grain Growers ruled that employers have an obligation of good faith and fair dealing when terminating employees. This can include the employer's conduct pre- and post-termination. The Wallace case has rapidly became one of the most important in employment law."
Video: 34 minutes • Speaker's paper 13 pgs. (4,335 words)
TERMINATIONS IN THE CHANGING WORKPLACE
Handling multiple terminations in the context of business change
Colina Magee, Associate Vice President, Human Resources, AIC Limited / The Berkshire Group of Companies; Garth O'Neill, Managing Partner, Weiler, Maloney, Nelson
- Group Dismissals in a Unionized Environment
- Ward Off Insecurities by Providing Assurances to Survivors
- Reasonable Notice Conditions under Common Law
- Develop a Robust Corporate Communication to Advise Staff of Changes
- Group Termination Provisions under the Canada Labour Code and Employment Standards Act
"Although business changes are difficult, preparation and communication are important in anticipating possible conflicts. This includes proper understanding of the community culture and legal requirements that impact your corporate strategy. When terminations occur that are unrelated to performance, employees need to feel like they were treated fairly and they need to be seen to have been treated fairly by those remaining with the organization. Employees are the lifeblood of any organization and must be treated as such."
Video: 42 minutes • Overheads • Speaker's paper 9 pgs. (1,529 words)
Using progressive discipline to avoid difficult terminations
Ken Manella, Labour Affairs Officer and Barbara Deorajh, Labour Relations Officer, Human Resources Skills Development Canada –Labour Program
- Understanding Investigation, Mediation and Adjudication Processes
- Defining 'Just Cause' and Employer Condonation
- Criteria and Procedures for Misconduct Dismissal
- Aggravating and Mitigating Factors of Progressive Discipline
- Well Documenting Discipline and/or Dismissal Situations
"Ensure your company policy outlines the circumstances for discipline and dismissal. To be valid it must be written, known, and applied consistently to all employees. While building the company policy heed the criteria of reasonableness and non-discrimination. This tool will mandate a thorough investigation and fair progressive discipline to correct unwarranted behaviour."
Video: 28 minutes • Overheads
Clinic: Containing a volatile termination
Hugh J. Haley, Psychologist, Haley & Associates; Philip Blackford, Vice President and Executive Practice Leader, Right Management Consultants / Course Director, York University; M. Norman Grosman, Senior Partner, Grosman, Grosman & Gale LLP
- Myths and Common Misunderstandings of Violence, Suicide and Clinical Prediction
- Characteristics of the Most Appropriate Violence Intervention
- Preparing for a Potentially Hostile Termination Meeting
- Simple Rules That Limit Volatile Terminations
- Establishing Adequate Violence Deterrent Factors
"The most extreme reactions to termination are for the terminated employee to become hostile or clinically depressed. Risk Management requires an understanding of the dynamics of hostility and depression, risk assessment, contingency plans and procedures, and management strategies to contain serious incidents. There is no substitute for planning and preparation."
Video: 69 minutes • Overheads • Speaker's paper 6 pgs. (1714 words)
Managing the termination of a senior-level employee
Michael Cuddihy, Vice President, Human Resources, The Ottawa Hospital
- Maintaining the Image of the Employer and Employee in High Profile Situations
- Cause, Reasonable Notice and Monetary Considerations
- Managing the Tension of a Private Manner and the Public's Interest in Detail
- The Necessary Documentation and Review Process
- Appropriate Planning: Logistics. Mandate and Communication Components
"A termination is a watershed event for both the executive and the organization. The manner in which the dismissal is handled the will send a powerful message to the entire organization. In addition when dealing with a senior employee, recognize that the dismissal will likely be in the public domain. If you do it ineffectively that will form part of your corporate mythology."
Video: 44 minutes • Overheads
EVALUATING THE TERMINATION
Panel discussion: Structuring a sound termination package
Kevin C. Breen, Director of Human Resources, City of St John's; Elisabeth A. Campin, Counsel, General Motors of Canada Limited; Charles E. Humphrey, Lawyer, Stringer Brisbin Humphrey
- Package Considerations: Length of Service, Age, and Availability of Similar Employment
- Incorporating Personal Concerns and Interests when Structuring the Termination Package
- Payment Options: Lump Sum versus Salary Continuance
- Communicating Package Terms to the Employee: Developing a Comprehensive Termination Letter
- Considering Vehicle Allowance, Company Loans, and Computer Purchase Programs
"The first step when developing a fair 'without cause' termination package is to determine the employee's entitlement. A review of the employee's written employment contract, employment standards legislation, and the common law will provide the answer. Above all, consider the feelings of the employee. Termination letters, which stipulate the conditions of the package, should be direct and clear, but they do not have to be abrupt or cold."
Video: 51 minutes • Overheads • Speaker's Paper 19 pgs. (6,513 words)
Latest post termination strategies
Angelo M. Pesce, Principal Consultant, Baycrest Human Resources Management Consulting
- Assessing the Impact of a Dismissal on Corporate Productivity
- Managing Internal and External Communication Needs
- Preserving Confidence and Maintaining the Credibility of Management
- Providing Support Systems for Remaining Staff
- Evaluating The Process: Look for Errors and Embrace Change
"Terminations create anxiety, uncertainty, fear and perhaps other negative feelings. These emotions are not unique to the individual being dismissed, but are also prevalent for those that are left behind. The manner in which the dismissal is executed will have a major impact on organizational reputation from the perspective of remaining employees. Doing things right the first time will minimize the impact on the employer's credibility and reduce the harm inflicted on the culture of the remaining staff."
Video: 36 minutes • Overheads
Terminations in a unionized setting
Stewart D. Saxe, Managing Partner, Baker & McKenzie LLP
- Determining Employer Response by Termination Category
- Seniority Rights and Bumping Right Procedures
- Human Rights Restrictions and Illness Provisions for Non-Culpable Dismissals
- Insights into Collecting Physical Evidence and Witness Statements for Just Cause Termination
- Checklist for Determining the Appropriate Action for Just Cause Cases
"When working in a unionized environment, view the collective agreement as a big employment contract which contains unique provisions. Interestingly, the existence of some of its provisions is actually a benefit. The surprise to most observers is that having a collective agreement actually reduces the likely costs to employers when letting employees go."
Video: 44 minutes • Overheads
Is innocent absenteeism cause for dismissal?
Ross Dunsmore, Partner and Co-Chair, Municipal Sector Practice Group, Hicks Morley Hamilton Stewart Storie LLP
- Differentiating Innocent and Culpable Absenteeism
- The Relevance and Provisions of a Long Term Disability Plan
- Common Extended Absenteeism Conditions in Collective Agreements
- Legal Interpretation of Frustration and its Effect on Contracts
- Establishing Cause for Innocent Absenteeism Dismissals
"If you have a reasonable basis for identifying concern in the innocent absenteeism area you are entitled to address it. This can be done gently by accommodation and cooperating with the employee or aggressively demanding medical evidence and maintaining ongoing vigilance. Although it is very complicated, there is a moment in time after various accommodating steps have been taken by the employer, when cause can be used for dismissal."
Video: 46 minutes |