This document provides guidance on effectively dealing with employee dismissals and terminations. It defines types of dismissal like wrongful dismissal and constructive dismissal. It provides examples of calculating termination pay depending on if an employee has a regular work week or not. The document outlines special considerations for mass terminations and recall rights. It discusses employment contracts, case law like the Rodrigues case, social media issues, and examples of constructive versus summary dismissal. The document provides a checklist for the act of dismissal and transferring an employee. It discusses the fairness doctrine guide and things to consider when terminating employment.

1. Effectively dealing with dismissals
and terminations
by Toronto Training and HR
May 2012

2. 3-4 Introduction to Toronto Training and HR
Contents 5-7
8-17
Definitions
Calculating termination pay
18-19 Mass terminations
20-21 Recall rights
22-23 Employment contracts
24-27 Rodrigues case (B.C.)
28-29 Social media
30-31 Constructive dismissal before resignation
32-34 Examples of constructive dismissal
35-36 Examples of summary dismissal
37-44 The act of dismissal
45-47 Transferring an employee where
performance has been poor
48-50 The fairness doctrine guide
51-52 Things to consider when terminating
employment
53-54 Conclusion and questions
Page 2

3. Introduction
Page 3

4. Introduction to Toronto Training
and HR
• Toronto Training and HR is a specialist training and human
resources consultancy headed by Timothy Holden
• 10 years in banking
• 10 years in training and human resources
• Freelance practitioner since 2006
• The core services provided by Toronto Training and HR are:
- Training event design
- Training event delivery
- Reducing costs
- Saving time
- Improving employee engagement & morale
- Services for job seekers
Page 4

5. Definitions
Page 5

6. Definitions 1 of 2
Wrongful dismissal
Constructive dismissal
Termination
Temporary layoff
Page 6

7. Definitions 2 of 2
THE LAW
Farber v Royal Trust Company
Evans v Teamsters Local Union No.31
Wronko v Western Inventory Service Ltd
Employment Standards Act 2000
Page 7

8. Calculating termination
pay
Page 8

9. Calculating termination pay 1 of 9
EMPLOYMENT STANDARDS ACT 2000
An employee who does not receive the written
notice required under the ESA must be given
termination pay in lieu of notice-this is a lump sum
payment equal to the regular wages for a regular
work week that an employee would otherwise
have been entitled to during the notice period
An employee earns vacation pay on his or her
termination pay-employers must also continue to
make whatever contributions would be required
Page 9

10. Calculating termination pay 2 of 9
EXAMPLE-REGULAR WORK WEEK
Elaine has worked for three and a half years but
her job has now has been eliminated and her
employment has been terminated-Elaine was not
given any written notice of termination
Elaine worked 40 hours a week every week and
was paid $12.00 an hour plus she also received
four per cent vacation pay
Page 10

11. Calculating termination pay 3 of 9
EXAMPLE-REGULAR WORK WEEK
As she worked for more than three years but less
than four years, she is entitled to three weeks' pay
in lieu of notice. Elaine’s regular wages for a
regular work week are calculated:
$12.00 an hour × 40 hours a week = $480.00 a
week
Her termination pay is calculated:
$480.00 × 3 weeks = $1,440.00
Page 11

12. Calculating termination pay 4 of 9
EXAMPLE-REGULAR WORK WEEK
4% of $1,440.00 = $57.60
Finally, her vacation pay is added to her
termination pay:
$1,440.00 + $57.60 = $1,497.60
Result: Elaine is entitled to $1,497.60
Page 12

13. Calculating termination pay 5 of 9
EXAMPLE-REGULAR WORK WEEK
4% of $1,440.00 = $57.60
Finally, her vacation pay is added to her
termination pay:
$1,440.00 + $57.60 = $1,497.60
Result: Elaine is entitled to $1,497.60
Page 13

14. Calculating termination pay 6 of 9
EXAMPLE-NO REGULAR WORK WEEK
Tony has worked at a nursing home for four years-
he works every week, but his hours vary from
week to week
His rate of pay is $12.00 an hour, and he is paid
six per cent vacation pay
Tony’s employer eliminated his position and did not
give Tony any written notice of termination-he was
ill and off work for 2 of the 12 weeks immediately
preceding the day his termination date
Page 14

15. Calculating termination pay 7 of 9
EXAMPLE-NO REGULAR WORK WEEK
Tony earned $1,800.00 in the 12 weeks before the
day on which his employment ended, and he is
entitled to four weeks of termination pay
Tony’s average earnings per week are calculated:
$1,800.00 for 12 weeks ÷ 10 weeks (Tony was off
sick for two weeks therefore these weeks are not
included in the calculation) = $180.00 a week
Page 15

16. Calculating termination pay 8 of 9
EXAMPLE-NO REGULAR WORK WEEK
His termination pay is calculated:
$180.00 × 4 weeks = $720.00
Then his vacation pay on his termination pay is
calculated:
6% of $720.00 = $43.20
Finally, his vacation pay is added to his termination
pay:
$720.00 + $43.20 = $763.20
Result: Tony is entitled to $763.20
Page 16

17. Calculating termination pay 9 of 9
WHEN TO PAY
Termination pay must be paid to an employee
either seven days after the employee is terminated
or on the employee's next regular pay date,
whichever is later
EXEMPTIONS
Page 17

18. Mass terminations
Page 18

19. Mass terminations
Special rules for notice of termination may apply
when the employment of 50 or more employees is
terminated at an employer's establishment within a
four-week period
Form 1
Notice
Exceptions
Page 19

20. Recall rights
Page 20

21. Recall rights
What are recall rights?
An employee who has recall rights and who is
entitled to termination pay because of a layoff of
35 weeks or more may choose to:
keep his or her recall rights and not be paid
termination pay at that time;
or
give up his or her recall rights and receive
termination pay
Page 21

22. Employment contracts
Page 22

23. Employment contracts
KEY AREAS TO BE ADDRESSED:
Remuneration
Confidentiality
Restrictive covenants (non-competition and/or
non-solicitation)
Probationary periods
Termination provisions
Page 23

24. Rodrigues case (B.C.)
Page 24

25. Rodrigues case (B.C.) 1 of 3
POINTS TO CONSIDER
Resist the temptation to summarily dismiss
disruptive employees and instead consider the
following before making any decision
Has reasonable opportunity to improve been
given? The longer the service of the employee, the
more time must be given to address shortcomings-
Rodrigues was a 16-year employee who was given
a mere month to improve, then fired after only a
day
Page 25

26. Rodrigues case (B.C.) 2 of 3
POINTS TO CONSIDER
Were there prior warnings?
If an employee has never been informed their
behaviour is unacceptable, the employer has
effectively condoned the behaviour-the employer
must inform the employee of the changed
expectations
Page 26

27. Rodrigues case (B.C.) 3 of 3
POINTS TO CONSIDER
How specific are the warnings?
Vaguely telling an employee they must improve
their attitude is insufficient-the employer must
clearly spell out in what respects their conduct is
deficient
Page 27

28. Social media
Page 28

29. Social media
West Coast Mazda
Page 29

30. Constructive dismissal
before resignation
Page 30

31. Constructive dismissal before
resignation
Russo v Kerr Bros. Ltd
Page 31

32. Examples of constructive
dismissal
Page 32

33. Examples of constructive dismissal
1 of 2
Unilaterally revising an employee’s contract to
introduce a very narrow termination clause without
consideration (i.e. without something in return,
such as a bonus payment)
Revising an employee’s job description to remove
significant aspects such as supervising a team or
leading an important ongoing part of the business
Moving an employee from a corner office to a
cubicle
Page 33

34. Examples of constructive dismissal
2 of 2
Decrease in compensation
moving an employee from straight salary to a
lower salary with commission
changing positions into a lower pay scale
transferring an employer to a jurisdiction with a
higher cost of living but no salary increase
removing a car bonus
cutting hours
Page 34

35. Examples of summary
dismissal
Page 35

36. Examples of summary dismissal
Theft, fraud or deliberate falsification of records
Fighting or assaulting another person
Deliberate damage to company property
Serious incapability through alcohol or drug use
Serious negligence causing unacceptable loss,
damage or injury
Serious acts of insubordination
Page 36

37. The act of dismissal
Page 37

38. The act of dismissal 1 of 7
Prepare for the meeting at which the dismissal is
to take place very thoroughly
Be certain of the facts of the case and the precise
reasons the decision to dismiss has been arrived at
Organize practical matters such as pay in lieu of
notice before the meeting takes place
Consider in advance the likely reaction of the
individual and prepare an appropriate response
Page 38

39. The act of dismissal 2 of 7
Talk to employees concerned firmly but
sympathetically as it is important that they
understand the decision is final, but they should be
given as much practical assistance in planning for
their future as is possible-including outplacement
programs if appropriate
Where possible avoid the need for employees to
leave immediately as this is likely to be humiliating
and cause ill-feeling
Page 39

40. The act of dismissal 3 of 7
CHECKLIST:
Prior to terminating an employee, review the
employee’s employment contract to determine
what severance obligations are owed-if the
employee is on a fixed-term contract consider
whether there may in fact be a severance
obligation to the employee by virtue of the
expiration of that contract or the fact that there
have been a series of fixed-term contracts
Page 40

41. The act of dismissal 4 of 7
CHECKLIST:
When there has been alleged misconduct in the
workplace, employers should ensure that an
objective and thorough investigation is completed-
if assistance is needed to conduct the
investigation, the help of an experienced
workplace investigator should be sought
Page 41

42. The act of dismissal 5 of 7
CHECKLIST:
Following an investigation into the alleged
misconduct and prior to making the decision to
terminate an employee for cause, the employer
should consider whether there is an option other
than terminating the employee-the level of
discipline imposed must be proportional to the
misconduct
Page 42

43. The act of dismissal 6 of 7
CHECKLIST:
Always consider the employee’s explanation of
misconduct before terminating employment
If the decision is made to terminate an employee,
consideration should be given to other potential
issues that may arise in the termination so care
can be taken to deal with them. These issues may
include human rights considerations and
employees who are on leave
Page 43

44. The act of dismissal 7 of 7
CHECKLIST:
Prepare a termination letter in advance of the
meeting and have it ready to give to the employee
at the meeting-also, plan the termination meeting
in advance including what will be said, when and
where the meeting will be conducted, who will
conduct the meeting, and possible questions that
may arise
Page 44

45. Transferring an employee
where performance has
been poor
Page 45

46. Transferring an employee where
performance has been poor 1 of 2
National Bank v Chandran (Alberta)
Ensure the employee is provided full details of the
case against them and is permitted to respond
If the employee disputes the facts, conduct an
objective investigation
Understand that a disciplinary letter warning of
termination may ensure a demotion becomes a
constructive dismissal, even if it is too minor a
demotion to be so otherwise
Page 46

47. Transferring an employee where
performance has been poor 2 of 2
In deciding whether a demotion might be a
constructive dismissal, consider what effect it may
have on an employee's career progression-the
court placed considerable weight on the impact the
transfer would have on Chandran's chance of
reaching his career goals
Page 47

48. The fairness doctrine
guide
Page 48

49. The fairness doctrine guide 1 of 2
Has appropriate training been provided?
Is the standard of performance reasonable?
Has the standard of performance been tested and
found fair?
Has the standard of performance been
communicated?
Do employees understand the standard of
performance?
Page 49

50. The fairness doctrine guide 2 of 2
Are all employees meeting the standard of
performance?
Has a fair investigation been conducted?
Is there actual documented proof of a deficiency?
Has the investigation been void of discrimination?
Is the discipline appropriate?
Page 50

51. Things to consider when
terminating employment
Page 51

52. Things to consider when
terminating employment
Cause is almost impossible to prove
Considering there is likely to be a pay-out, typically
never state why the employee is no longer wanted
in the organization
How much notice?
Page 52

53. Drill
Page 53

54. Drill
Page 54

55. Conclusion and questions
Page 55

56. Conclusion and questions
Summary
Videos
Questions
Page 56