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properly, can be a danger to the worker and others. Failure to train your staff appropriately on both the equipment they use and the hazards they may face, may not only result in costly fines, it may also lead to a claim of constructive dismissal.
Toxic Environment: All employees should have an expectation of working in a respectful environ- ment, free from harassment. Just like any other hospitality industry however, golf courses consistently face a struggle of providing an enjoyable experience while ensuring that their clientele are respectful to one another and the staff. It is likely that golf course management may face a circumstance where a worker may have been subject to behaviour that is not welcome, or ought to have been known to be unwelcome. It is critical that employers respond appropriately.
DETERMINING A SUCCESSFUL CLAIM
There are a couple of criteria that must be met for a constructive dismissal claim to be successful. First, the decision or action must be unilateral. Should the employee accept a change in terms or conditions, the only thing that may be required of the employer to avoid liability is to provide consideration (something of value) in exchange for the change.
In addition, for a claim to be successful, the change must be meaningful. For example, should an employer unilaterally amend an employee’s pay by a few percent, a third party may rule that the amount of pay that has been lost relative to the overall compensation of the employee, does not reach the bar of a meaningful change. Thus, the employment terms have not been so significantly altered to make the contract void.
If it was determined that a decision was both unilateral and meaningful, the outcome of constructive dismissal is essentially termination of employment. That means all termination obligations, which in the case of a constructive dismissal will usually include com- mon law, must be paid by the employer.
The tangible cost to the employer can be significant. Typic- ally, when an employee claims constructive dismissal, they do so with legal representation. Further, case law has shown that the manner in which you terminate someone does affect the amount of termination pay owed. In the case of constructive dismissal, the employer unilaterally broke an agreement. Give that type of ammunition to an employment lawyer and it is safe to conclude that that a claim of constructive dismissal it is going to cost the employer a lot of money.
There are also intangible costs to be considered. Word of constructive dismissal and any ensuing legal action could damage the employer’s reputation, both within the industry and among potential future employees. This could impact the company’s ability to attract and retain top talent. If the claim of constructive dismissal was due to a toxic or hostile work environment that can have a negative impact on employee morale, productivity, and overall workplace culture.
HOW DO YOU MITIGATE RISK?
There are necessary steps an employer can take to mitigate your risk of ever having to face a claim of constructive dismissal:
Employment Agreement: A well- drafted employment agreement is the most important document in the life cycle of the employment arrangement. This is where you can build in the flexibility required to make operational decisions with
little to no liability. A well written layoff clause gives you the right to temporarily layoff an employee. Another example is wording that addresses seasonal hours, allowing the employer to flex hours as required for operational needs or for weather. These are but a few important exam- ples of how a well drafted employ- ment agreement can protect you.
Policies and Training: The reason you have HR policies is not only because some are required by law, but also, it would be foolish to not have them otherwise. Health and safety policies, harassment in the workplace, code of conduct, etc., these are policies that are all essential to protect you. However, it is not good enough to simply hand your employees a piece of paper. It is your obligation to ensure that your employees are trained and understand the process for seeking assistance. If can you avoid even one claim of constructive dismissal or harassment, you will be glad you did the right thing.
Negotiation: If you are forced to make that difficult decision that could lead to a claim of constructive dismissal, remember, if it is a mutually agreed to decision, it does not meet the criteria. Oftentimes, employees will understand why you need to make a tough decision. Oftentimes, employees will work with their employer to get through difficult times. Although you should always be careful on how you approach the situation, having an open, respectful line of communication can be the difference between a positive outcome and a lawsuit.
This article is intended to provide readers with general information. It should not be regarded or relied upon as legal advice or opinion.
Golf Business Canada
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