Canada Labour Code Part III Module Three Terminations of Employment

Termination of Employment Temporary Layoff A layoff is considered a termination of employment when the employer has no intention of recalling the employee to work. Record of Employment (ROE) Records of Employment are the responsibility of Service Canada. Vacation Pay Payable within 30 days of employee’s termination of employment Layoffs versus terminations of employment will be discussed in more detail later on in this presentation (slide 13)

Layoff v. Termination Layoff deemed to be termination unless: Layoff is less than three months; Layoff is more than three months with a callback date within six months; Employee laid off is a member under a collective agreement with recall rights. NOTE: Recall of less than two weeks does not interrupt layoff period. If layoff meets these criteria, then it’s deemed to not be a termination and therefore the employee is not entitled to receive notice or severance. When the collective agreement has longer recall rights compared to the Code: Collective agreements may specify a term of the lay-off longer than 12 months (e.g. 24 or 36 months). Even if these terms appear to exceed what the Code provides, the Labour Program’s position is that the termination will occur after a recall right of 12 months. Information related to this topic can be found in Regulation 30 of the Canada Labour Standards Regulations.

Individual Terminations Where the employer terminates the employment an employee who has completed three consecutive months of continuous employment, the employer must provide two weeks written notice or two weeks pay in lieu of notice. Conditions of employment do not change during notice period. Notice not required if termination for just cause. Code does not require employee to give notice. Does the requirement for notice or pay in lieu apply to all employees? It applies to any employee whose employment is being terminated except as follows: a. an employee who has not completed three consecutive months of continuous employment; b. an employee who terminates his or her own employment; c. an employee who is dismissed for just cause; d. an employee who is on a lay-off that does not constitute a termination of employment

Severance Pay Where an employee has completed 12 consecutive months of continuous employment, an employer must pay the greater of: two days pay per completed year of employment; or five days wages at the employee’s regular rate of wages for the regular hours of work. Severance pay not required if termination is for just cause. Just cause and progressive discipline will be discussed later on in this presentation (slides 19 and 20)

Just Cause Clearly communicate to employees the expectations of their job and what will happen if these are not met. Actions are measures aimed to help the employee correct an inappropriate behaviour on the job as opposed to punishing them. Employer should meet with employee to discuss reason for discipline and what corrective action is required. This will enable the employee to understand the repercussions of his/her actions and allow the employee to understand how to correct the behaviour. If progressive discipline is applied effectively, with a view of correcting behaviour and explaining the consequences if it is not corrected, it should come as no surprise to that employee if dismissal is the final result.

Unjust Dismissal Complaints (also applies to constructive dismissals) Admissibility The employee must not: be a manager be a member of a group of employees subject to a collective agreement. The employee must : Have completed 12 consecutive months of continuous employment. Make their complaint in writing Make their complaint within 90 days of dismissal Employees who believe they have been unjustly dismissed may lodge a written complaint of unjust dismissal with the department, subject to admissibility. Courts have held that unjust dismissal provisions also apply to "constructive dismissal". Some examples: Employer has not directly fired the employee, but has failed to comply with the contract of employment in some major respect. Employer has unilaterally and substantially changed the terms of employment or expressed an intention to do either of these. forced resignation demotion, real or implied. Constructive dismissal is generally an unjust dismissal. Not all cases of an employee quitting amount to "constructive dismissal". When handling complaints of unjust dismissal, alternate dispute resolution services provided by the inspector will not address issues related to jurisdiction, the employer-employee relationship or manager status. In the event that these matters are raised, the complaint will be referred to an adjudicator for decision. Admissibility: Employee was dismissed (also constructive dismissal). Employee has completed 12 consecutive months of continuous employment. Employee was not laid off due to lack of work or any other discontinuance of a function. Definition of Manager means a very high-level manager, who has a good deal of latitude in the decision-making process (power), budgetary control, the power to hire and fire. (only if debated) REF: IPG-049. We do not make the determination on “manager”. …Discuss Lemeiux decision. The interpretation of “excluded management, elimination of position versus dismissal” is not the responsibility of the Labour Program. If these matters arise, an adjudicator would be appointed to determine these factors.

Unjust Dismissal Process The employer is required to provide written reasons for termination. The inspector may assist the parties to settle the complaint. Inspector’s role is to be a mediator, not an enforcer. If the inspector is not able to assist the parties to settle within a reasonable time, the complainant may request that the complaint be referred to an adjudicator. As opposed to other Divisions of the Code, the Inspector is not called upon to decide which party is correct. The inspector is there to review admissibility and then to assist the parties to resolve the complaint. It is expected that the complaint be resolved within a reasonable amount of time. The Labour Program aims to assist parties to resolve complaints within 90 days of receipt of a complaint of unjust dismissal (as an average). Resolution may be by way of a cash settlement, reinstatement, an apology, withdrawal of the complaint, or any combination of the above. Ultimately, the parties decide the terms of settlement, which must be adhered to. Inspectors have access to other cases which are often helpful in assisting the parties to view the outcome of a termination under similar circumstances.

Adjudicator’s Powers Reinstate the employee; If Dismissal is ruled “unjust”, the adjudicator may: Reinstate the employee; Award lost wages incurred as a result of the dismissal; Award costs, including legal fees; Award anything else to counteract the consequences of dismissal. Rule on preliminary objections, such as jurisdiction, employment relationship or lay-off. Accept testimony and evidence. Rule “Unjust Dismissal”.

Progressive Discipline January 2006 Progressive Discipline Verbal Warning (Informal); Written Warning, to be put in personnel file; Suspension (may vary in length) Dismissal Note: Final Warnings - a very important step If progressive discipline is applied effectively, with a view of correcting behaviour and explaining the consequences if it is not corrected, the employee should clearly understand that dismissal is the final result. Verbal Warning Ineffective unless recorded and brought to Employee’s attention Should be carried out in counseling session Employee must be advised of next step in case of reoccurrence Written Warning Letter of Reprimand should include: clear identification of infraction and its date record of damaging statements/admissions confirm previous verbal warnings specific action to be taken to correct behavior more serious action - if changes not evidenced, or if similar infractions occur if this is final warning, letter should state so Suspensions: Severe form of discipline Usually not appropriate until Employee received verbal a/o written warnings and infractions still not corrected Some infractions warrant automatic suspensions Timing of the suspension should be limited to a specific period of time and not an indefinite period. If final warning - you must inform Employee, next step will be discharge Final Warnings: Must be given at the right time Make it clear to the Employee that any further incidents will result in discharge Important step - Adjudicators may conclude that Employee did not realize that he/she would be fired the next time. Discharge the final step normally based on accumulation of infractions, when all other corrective measures have failed Employer must demonstrate the use of a Progressive Discipline system. Employer must demonstrate employee was given all the chances he/she deserves. Employee must be given opportunities and chances to improve and correct his/her behaviour/actions/habits, etc. It should be noted that even if the steps are followed, the dismissal could still result in an adjudicator or court determining that the employee was unjustly dismissed. As mentioned, it is not the role of the Labour Program inspector to determine cause or whether the dismissal was unjust.

Questions?

Contact – Labour Program For additional information: Toll-free: 1-800-641-4049 Website: http://www.esdc.gc.ca/en/jobs/workplace/employment_standards/labour/index.page