By Christine Jonathan
It doesn’t matter what business you are in, having to dismiss an employee is never an easy or pleasant task. Moreover, since the 1997 Supreme Court of Canada case of Wallace v. United Grain Growers Ltd., employers now have an obligation of "good faith and fair dealing" in carrying out a dismissal. Failing to conduct a “good faith” termination may result in a wrongful dismissal claim or in an increase in the notice period an employee would otherwise be entitled to receive following a without cause termination, known as the “Wallace factor”.
Your exposure as a gaming facility operator to a claim for wrongful dismissal damages based on the Wallace factor can be greatly reduced by following these 10 simple rules, which require an operator to be sensitive to how an employee may respond to the manner in which he or she is terminated.
Tip 1: Scheduling a dismissal meeting
Day of the Week : Although not applicable to every employee, some employees may wish to contact a lawyer or financial advisor as soon as possible after termination. Scheduling a dismissal meeting earlier in the week provides an employee with ample opportunity to seek professional assistance. Wherever possible, terminatng an employee before a holiday or scheduled vacation should be avoided.
Time of Day: Wherever possible, the meeting should be scheduled towards the end of the day so that the dismissed employee can leave the meeting without having to engage with co-workers. Scheduling the meeting late in the day will also allow the employee to seek the support of friends or family after the work day.
How long should the meeting last?: The purpose of the dismissal meeting is to inform the employee that his or her employment is being terminated. While the employee is entitled to be advised of the reason for termination, a debate of the reasons should be avoided. The meeting should be no more than 15 minutes, which will allow sufficient time to advise of the reason for termination, provide the separation package and allow the employee to ask any questions relating to procedure.
Tip 2: The location of the meeting
The meeting should be conducted in a "neutral" location, such as a board room, or in the employee's private office. This helps to reduce the chance that the employee will feel intimidated, and it will minimize the rumours that may be generated by those employees who observe the employee being summoned to a supervisor’s or manager’s office or the Human Resource Manager’s office. Picking a neutral location will also provide the individuals conducting the termination with an easy exit after the meeting and allow the employee some time on his or her own, if so desired.
Tip 3: Who should be present at the dismissal meeting?
It is prudent to have a third party present at the meeting to take notes of what is said both to the employee and by the employee, and to verify that the letter of dismissal is hand-delivered to the dismissed employee (i.e. to confirm the date upon which written notice of termination is given). This third party can be the employee’s supervisor, manager or someone from the Human Resources department.
Tip 4: The termination package and ILA
If the employee is being given a termination package which requires him or her to sign a release, the operator should not press the employee to sign the release on the spot. It is prudent to provide the employee with a reasonable amount of time to obtain independent legal advice (“ILA”) regarding the terms of the temination package, including the release, and whether to accept it.
Tip 5: Relocation Counselling
If the operator plans to offer relocation counselling services as part of the termination package, it is a good idea to either have the relocation counsellor present at the workplace to immediately meet with the employee, or to have the counsellor’s business card available to give to the employee at the time of the dismissal meeting.
Tip 6: Reference letters
Whenever possible, the operator should be prepared to give a letter of reference. It should be ready to be given to the employee at the dismissal interview. All reference letters should be truthful and not inconsistent with any position the operator may be taking with respect to whether there was "just cause" for the employee's dismissal. The sooner the employee receives a letter of reference, the sooner he or she can commence the search for new employment. The earlier the employee mitigates his or her damages by securing a new position, the smaller the potential claim he or she may have for damages for wrongful dismissal.
Tip 7: Record of Employment
The employee’s Record of Employment (ROE) should be ready to present to him or her at the dismissal meeting. This will permit the employee to apply for Employment Insurance benefits without delay. The operator should ensure that the reason given on the ROE for the “interruption in the employee’s earnings” is consistent with the reason given at the dismissal meeting for the employee’s dismissal. If the ROE is not ready at the time of the meeting, it should be mailed to the employee within five days of his or her dismissal.
Tip 8: Notice to be Sent to Other Employees or the Public
Where you are terminating an employee in a managerial or supervisory role, or one who regularly deals with the public, you may be required to notify the employee’s staff, co-workers or the general public that the employee is no longer employed by the operator. In these circumstances, whenever possible, you should discuss what you will be saying to other employees and the public at large with the employee at the termination meeting, if appropriate. If you can reach an agreement on wording of an announcement that permits the employee to save face, you will minimize the chances of litigation against the operator.
Tip 9: Dismissal for Just Cause
The court in Wallace stated that if an employee is being dismissed for just cause, the employer ought to be “candid, reasonable, honest and forthright … and should refrain from engaging in conduct that is unfair or that is in bad faith by being, for example, untruthful, misleading or unduly insensitive." In practice, this means that an employee ought to be given a detailed summary of all the allegations/incidents the operator is relying upon to establish cause, and should make sure that the dismissal letter confirms that the dismissal is for “just cause” and is for the reasons discussed with the employee that day. The letter should be given to the employee at the end of the dismissal meeting.
Tip 10: The Return of the Operator’s Property and the Removal of the Employee’s Personal Property
At the conclusion of the dismissal meeting, arrangements should be made with the employee for the return of any and all of the operator’s property currently in his or her possession, as well as the return of the employee’s personal belongings if he or she is not able to collect them that day. This should be done promptly irrespective of whether the employee signs a release or rejects the termination package.
Following these 10 simple rules will reduce the stress and anxiety generally experienced when terminating employees, and more importantly, will reduce the exposure of the gaming facility operator to a wrongful dismissal claim based on a bad faith dismissal.
Christine Jonathan is a member of the gaming law section of Elkind & Lipton LLP who focuses extensively on employment law and litigation.