Termination Do’s and Don’ts Presented by: Tammy Sullivan Saskatchewan Indian Gaming Authority

Based on SIGA’s practices – Saskatchewan legislation – Non-unionized environment 4/14/2015CAHRMA Conference Presentation

SIGA’s Guiding Principles Tâpwêwin Speaking with precision and accuracy Pimâcihowin Making a living Miyo-wîcêhtowin Getting along with others Miskâsowin Finding one’s sense of origin and belonging Wîtaskêwin Living together on the land 4/14/2015CAHRMA Conference Presentation

Termination of Employment Can be initiated by the employee (resignation) or the employer (dismissal/termination) Employer initiated is in cases of: – unacceptable job performance, – misconduct, or – economic reasons (budget cutbacks, reorganization, down sizing) Focusing on employer initiated terminations 4/14/2015CAHRMA Conference Presentation

Just Cause A reasonable and lawful ground for action Result of culminating incident following numerous warnings OR Single, serious incident that causes irreparable damage to employment relationship No notice or pay instead of notice required 4/14/2015CAHRMA Conference Presentation

Factors in determining Just Cause Reasonable knowledge of consequences Supported by policy/procedure Consistent application of policy/procedure Fair process Sufficient proof Seriousness of incident Mitigating/aggravating factors 4/14/2015CAHRMA Conference Presentation

If Just Cause is Not Established Requires notice or pay instead of notice if terminating Consider options to termination – Progressive discipline – Deployment to another position Examples: – Probationary failure – Layoff/Organizational Restructure 4/14/2015CAHRMA Conference Presentation

Culminating Incident Definition: Dictionary.com to reach the highest point, summit, or highest development; to end or arrive at a final stage; to rise to or form an apex; terminate; to bring to a close; complete; climax.

Culminating Incident Final incident that leads to termination Must be a demonstrated pattern of misconduct Previous warnings that further incidents could lead to termination – Consistent application of progressive discipline 4/14/2015CAHRMA Conference Presentation

Scenario 1 Jack is a long-term employee, but has been having attendance issues for quite a few months now. Jack’s manager has talked to him a number of times, but has not issued any disciplines or documented any of the discussions. Last week, Jack was a no-call/no-show and had no valid explanation when asked why he was a no-call/no-show that day. The manager wants to terminate Jack. Does the manager have just cause to terminate Jack? 4/14/2015CAHRMA Conference Presentation

Scenario 2 Jimmy has been having attendance issues for quite a few months now. His manager has talked to him a number of times, and issued disciplines up to and including a five day suspension and last chance agreement within the last four months. Last week, Jimmy was a no-call/no-show and had no valid explanation when asked why he was a no- call/no-show that day. The manager wants to terminate Jimmy. Does the manager have just cause to terminate Jimmy? 4/14/2015CAHRMA Conference Presentation

Impact of delayed action Has a negative effect on the case. – Set aside by the courts – Undermines the employer’s credibility in alleging that the incident was considered to be serious – Condones the behavior and won’t be able to use as a reason for just cause. – Result in law suits – Damages can be awarded 4/14/2015CAHRMA Conference Presentation

Rights of probationary employees The existence of a probationary period does not mean that the probationary employee can be terminated for any reason whatsoever. While there may be no need to establish just cause, the manager must be prepared to demonstrate that it acted reasonably and fairly and that the decision to terminate was not discriminatory or in bad faith. 4/14/2015CAHRMA Conference Presentation

Guidelines to deal with probationary employees Inform the employee of the standards expected Provide knowledgeable guidance and direction Provide feedback in a timely fashion Consider extending the probationary period or moving to another position Don’t let the probationary period elapse without making a decision! 4/14/2015CAHRMA Conference Presentation

Criteria required for probationary terminations To substantiate a non-disciplinary termination, the manager must establish: – The level of job performance (reasonable, achievable) required – That such a standard was communicated to the employee – That the manager gave suitable instruction and supervision to enable the employee to meet the standard – That the employee was incapable of meeting the standard of that job (or perhaps any other position), usually demonstrated in a trial period and – That the manager warned the employee that failure to meet the standard would result in dismissal. This is a notice, not discipline or a threat. Remember: A written record should be maintained consisting of the current job description, expected performance standards and deviations, performance reviews with dates of meetings, training sessions and warnings issued if any 4/14/2015CAHRMA Conference Presentation

Wrongful Dismissal A legal claim made before the courts about the cause or length of notice/payment in lieu of notice In cases of wrongful dismissal, courts also look at the way in which the termination was handled – if the employer was unfair, or acts in bad faith during the dismissal process Damages can be awarded in addition to pay instead of notice 4/14/2015CAHRMA Conference Presentation

Constructive Dismissal Occurs when there is a significant change in the employment relationship that amounts to a dismissal – Significantly reduces an employee’s salary – Significantly changes an employee’s benefits – Makes a significant change to the employee’s hours of work – Makes a significant change to the employee’s authority or responsibilities 4/14/2015CAHRMA Conference Presentation

Role of Manager Involve HR Ensure adequate documentation Treat the employee fairly Act in good faith Handle the termination process in a professional way Have a follow-up plan 4/14/2015CAHRMA Conference Presentation

Role of HR Be aware of and adhere to legislation Review all sides of the situation with a neutral position – Be fair to the organization and the employee Advise the manager whether cause is established Ensure the employee is treated fairly and professionally

Burden of Proof The onus is on the employer to prove that an employee’s behaviour or conduct justifies termination without notice or compensation

Saskatchewan Employment Act Requirements When an employee is terminated, the employer must, within 14 days, pay: all wages owing; all vacation pay and public holiday pay owing; and any pay instead of notice (if required). Note: an employee’s regular paydays must be maintained.

Common Errors in Termination of Employment Error #1– Terminating the employee on the spot Do not act out of anger, frustration or impulse It is not recommended to terminate an employee on the spot. INSTEAD - Suspend the employee effective immediately, pending a review of the situation

Common Errors in Termination of Employment Error #2 – Lack of documentation to support the decision Do not construct documentation after the fact INSTEAD – document all through the employment relationship, in the normal course of business. REMEMBER – if it’s not documented, it didn’t happen!

Common Errors in Termination of Employment Error #3 – Losing control of the termination meeting The emotions of the situation take over the meeting INSTEAD: Prepare the manager for the meeting. Know what needs to be communicated to the employee and keep the meeting on track

Do’s Nip the problems in the bud - take action quickly Be consistent Ensure fairness Be aware of legislations, policies, procedures affecting decision

Questions 4/14/2015CAHRMA Conference Presentation