Page 28 - GBC Summer ENG 2021

REVIEW APPLICATION OF OTHER LAWS
While employers generally have the right to terminate an employ- ment relationship, the law prohib- its employers from terminating in a number of specific circumstances or for specific reasons. For example, an employer may not terminate for any of the following reasons:
• the employee is attempting to unionize the workplace under labour legislation, such as the Labour Relations Act, 1995 in Ontario;
• the employee has requested a leave of absence under employ- ment standards legislation, such as the Employment Standards Act, 2000 (“ESA”) in Ontario;
• the employee has requested accommodation under human rights legislation, such as the Human Rights Code in Ontario;
• the employee has filed a benefits claim under workplace safety and insurance legislation, such as the Workplace Safety and Insurance Act, 1997 in Ontario; or
• the employee has asserted rights under health and safety legisla- tion, such as the Occupational Health and Safety Act in Ontario.
This list is non-exhaustive and only provides some examples of circum- stances where a termination could be unlawful. Before proceeding with a termination, employers should speak with a lawyer to ensure that the termination is not prohibited by any applicable laws.
DRAFT THE TERMINATION LETTER
1. Decide Whether to Terminate Immediately or to Provide Notice of Termination
When terminating an employment relationship without cause, an employer will need to decide whether to provide: (a)actual notice of termination, which allows the employee to continue working until the specified date of termina-
tion; or (b) a payment instead of notice (i.e.“termination pay”), which allows the employer to end the relationship immediately. The selected option will influence the content of the termination letter.
2. Satisfy Technical Requirements When Providing Notice
When providing notice of termin- ation without cause, employers must satisfy a number of technical statutory requirements for the notice to be valid and effective. If the requirements are not satisfied, an employer may be required to provide statutory entitlements again.
For example, an employer may be required to provide an employee with termination pay notwith- standing that the employer had provided notice to avoid the termi- nation pay. In Ontario, the techni- cal requirements are as follows:
• The employer must notify the employee in writing.
• The notice must specify the termination date in a clear and unambiguous manner.
• The notice must be specifically addressed to the person whose employment is being terminated.
• The notice must be delivered to the employee through one of the specific methods permitted by the ESA (including personal service, courier service, or email if the employee is equipped to receive email).
If the employment relationship is being terminated “for cause”, the employer may also need to set out the employee’s misconduct in the termination letter. This require- ment will depend on the location of the employee’s workplace.
3. Provide at Least the Minimum Entitlements under Employment Standards Legislation
As previously discussed, employ- ees are generally entitled to notice of termination or termination pay
when terminated “without cause”. In addition to notice of termination or termination pay, employees may also have a number of other termi- nation entitlements under employ- ment standards legislation. When an employer fails to provide an employee with their minimum entitlements under employment standards legislation, the employer may be required to pay a penalty that they would not otherwise have been required to pay.
THE TERMINATION MEETING
Once the termination letter is draft- ed, the next step is to prepare and deliver the letter to the employee. We recommend delivering the letter to the employee in a face-to- face meeting, either in person or virtually. The following are tips on how to conduct the meeting:
• If possible, avoid termination meetings on Fridays, Mondays, and special occasions such as birthdays, anniversaries, vacations, and religious holidays.
• Conduct the meeting when the workplace is quiet, such as at the end of the workday, when there are fewer people in the office.
• The meeting should be held in private and should not be heard or seen by others in the workplace. Take steps to prevent disruptions such as unexpected drop-ins or phone calls.
• Two managers should be present at the meeting (for example, the employee’s manager and the manager responsible for human resources issues). The managers will serve as witnesses.
• Prepare a script of what to say. Avoid small-talk at the beginning of the meeting; begin the meeting by communicating the termina- tion. Be clear, direct and brief. Provide a reason for the termina- tion but avoid a detailed review of evidence supporting the termi- nation.
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