Wrongful Dismissal & How to Minimize Legal Risk
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Wrongful Dismissal & How to Minimize Legal Risk
Introduction:
Employment is a relationship between an employers and employees. This relationship is extremely important, as it becomes a part of our daily life. Aside of being a professional relationship, in many cases it becomes a personal and expressive one. In todays work place, if the conditions of employment are excellent, and the employees are treated with fairly, it is more likely that they will be pleased, and their productivity will increase. How ever if the environments in the work place are poor or not suitable, we will have the total opposite results.
To avoid any complications or misunderstandings between employers and employees, this relationship is governed by rules and laws. The basis of these rules is the ESA (Employment Standards ACT), of which the human resource managers and top management should be fully aware of. In the unionized world, the negations of a collective agreement will clarify all the specifics between management and employees. In the non-unionized world, these specifics are controlled in an employment contract, weather this contract is of a fixed-period of time or indefinite.
The employment relationship covers different stages before the person starts his/her first day at work. These stages are job opening, job descriptions, terms of employment, and advertising and job application which all fall under the pre-hiring stage.
The next stage is the hiring process which involves defining the employment relationship and the employment contract etc. The third stage is the employment relationship which involves working one on one with your employees. The final stage covers the types of termination, types of dismissals and legal risks involved. All these stages will be examined thoroughly as you read on.
Pre-Hiring:
Job Opening:
When a vacancy is created, by a shortage of employees or market demand, the management will try to fill this position(s) with the best qualified person(s) for the job. In order to do this, the management must consider the changes in the marketplace, which helps the management hire the best qualified amongst the applicants.
Job Description:
Job description is a written list of duties that the company expects it employees to perform. This will help the employer to follow up on the performance of the employees. This way if an employee is performing to the specific requirements outlined by the job description, may be a subject for discipline. However an excessively specific list of duties can have an opposite result, for example if a management delegates a duty not specified in the job description he/she may face a liability for constructive dismissal. In order to avoid these consequences, an employer may add that the job could include additional duties. When the vacancy is created, the management may choose to redefine and update the job description according to the companys need, without being in violation of constructive dismissal.
Terms of Employment:
In this phase, there are important issues to be discussed. The first issue is the monetary or remuneration offered to the selected person. This includes salaries, bonuses, benefits, pension plan, employee discounts, etc. In defining the pay level, the employer must be careful to follow the guidelines of the law when it comes to pay equity to both men and women performing the same job. They also should be aware of the minimum rate of pay set by the government of each province. The next stage is to determine the conditions of the employment. The employer can offer the hired person a written or oral contract for an indefinite period of employment. Another option is a fixed period contract, at the end of which the employer has the choice of renewal or termination without any legal consequences. The employer must consider all the options that are beneficial to the company. He/she have the option to hire and independent contractor to do the job. After the managers have made their decision about the job description, remuneration and the terms of employment, they will be ready to advertise for the position.
Human Rights Requirements:
In the managements efforts to advertise for hiring new employees, the managers, must be careful not to use words prohibited by the Human Right Legislation. They should also try to reach different groups of applicants. These prohibited grounds are: race, sex, sexual orientation, colour, ethnic origin, place of origin, disability, religion, age, & marital or family status. Managers should know that the Ontario Human Rights Commission states that employment should be based on the applicants ability and not on other factors. Once the managers have understood all the requirements of the job and all the restrictions imposed by the Human Rights Commission can go ahead and draft the application forms.
Employee Testing:
During the application and interview stage, the management is able to ask potential employees to provide them with information of any health problems. The management can inquire of any reason that might prevent an employee to perform his/her duties. If the employer would like to go into medical testing, they should wait until the decision to hire the person is made. Testing should only be performed in direct relevance to the job performance.
Hiring
The employer is now ready to offer the successful candidate a position with the organization. Both employer and employee should set out the standards of their employment relationship. Before the new employee starts, the employer should set the specific duties that can help to enforce variable issues in the relationship. Before an employer hires an employee they should keep in mind the potential minefields that can be avoided.
Inducing Breach of Contract:
When hiring a new employee you must make sure that the new employee does not have an existing employment contract with his/her current employer. This will help ensure that you will not be liable for any legal action against you for inducting breach of contract. In cases where an inducing breach of contract occurs, the former employer will have to prove that the current employer acted deceitfully or in bad faith. The current employee must have a valid argument against the claim. The current employer will have a defense if they can prove that by hiring the new employee they acted bona fide and in the best interest of the company.
Negligent