Employment Law Q&A for Businesses & Entrepreneurs

You can't control what the employee will do, so a lawsuit is still possible.  But you can take steps to minimize the likelihood of this happening.  First, reserve terminations "for cause" (i.e. without a package) for only rare occasions, where you can definitely prove significant misconduct on the part of the employee, such as theft, sexual assault or workplace violence.  While you may save money in not having to pay a package, borderline claims of termination for cause often lead to prolonged lawsuits, which can cost your firm much more, in the long term.

Second, if you believe you have a strong case to terminate for cause, then do so.  But such a conclusion should only be reached after a thorough investigation is concluded, including but not limited to obtaining the accounts of any complainants, the employee, and any third parties with knowledge of the relevant events.

Third, if you decide to provide a package, do not provide any less than the amounts set out in both the Employment Standards Act, 2000 and the written employment contract (if any).  If you wish to provide more than these amounts, be sure to do so only on the condition that a Release be signed.

You have a legal obligation to investigate such complaints.  And it's also the right thing to do, and the smart thing to do.

The key is to investigate in a thorough manner without drawing premature conclusions.  While investigating, take measures to protect both employees, rather than just the complainant.  Be sure to hear from each of the parties involved, including all other persons who have knowledge of the incident(s) in question and any other relevant information.

Once the investigation is concluded, if the complaint is upheld, it may be necessary to fire the harassing employee for cause.  However, be careful to weigh a number of competing variables, including that employee's work history as a whole, the nature and frequency with which the employee engaged in harassing behaviour, and the suitability of lesser sanctions, such as suspension without pay. If the harassing employee is not fired, be sure to prevent or minimize direct contact between the two employees in question.  

It would also be wise to give me a call at the outset or as soon as possible after you become aware of the complaint.

Take action without delay.  If you have observed such behaviour, it is virtually certain that this manager's subordinates have as well.  They have simply chosen to say nothing, perhaps out of fear for their jobs.

The manager's bullying behaviour needs to be identified and corrected.  Arrange a meeting with this employee, preferably in the presence of another trusted employee. Point out instances of misbehaviour, insist that this not continue, then follow up by providing your comments in writing.

Should discipline be necessary, be careful to give adequate consideration to all variables. Are you otherwise satisfied with the performance of this manager?  How long has this manager been employed by your firm and how many violations of company policies have been documented?  Does this manager have any health concerns?   Can he or she be transferred to a new position that would minimize the likelihood of further bullying behaviour...

Do not take this lightly.  But do not overreact.  Since it will be difficult for you to remain objective, I suggest you give me a call immediately.

Your best course of action is not to conduct the investigation yourself.  It may be necessary to hire a third party, not employed by your firm, to conduct the investigation.  This may be painful in terms of financial cost and the loss of control on your part.  But the law now requires that employers take any allegation of harassment and bullying seriously.

While the investigation is being conducted, take steps to separate yourself from the complainant.  Minimize or eliminate direct contact.  Always have someone else present when you communicate with this employee.  Confirm verbal instructions in writing.

Once the investigation is complete, follow the recommendations of the investigator as best as you are able.  Should the complaint be upheld, remember that your firm is a separate legal entity from you.  It is possible that you will be found to have violated one or more company policies. Call me to discuss your options.

Nothing initially, beyond responding to the lawyer.  But understand the big picture:  The employee is likely dissatisfied with the package you offered.  She not only consulted, but hired a lawyer - and likely paid the lawyer despite her uncertain financial future.  Consider: Does it make sense for you to improve the package?

Also understand the process:  Your first contact with the lawyer is their demand letter.  The lawyer typically will request much more than you offered, but also sometimes resort to exaggeration, bordering on the offensive.  Focus on on the real objective of the lawyer, which is (or should be) to obtain a better package for your former employee.  No lawyer wants to battle a former employer and achieve nothing for their client.  Design a package that reflects that reality.

If the lawyer is making unreasonable demands, such as weak or unfounded claims of discrimination on one or more grounds, it will likely be necessary to give me a call. More often than not, you will find that my involvement will help steer the conversation to a less fantastical, more realistic footing.

Make sure that the employee has provided a note or letter from a treating health practitioner detailing these modified duties, including hours worked, duties performed, etc.  If so, the law requires you to accommodate this employee unless it causes "undue hardship" to your firm. Do your best to re-integrate the employee back into the workforce.  Understand that he or she may have some setbacks, have lingering health issues and may initially lack confidence in their ability to perform the job.

Ideally, the employee will gain confidence, increase hours, and eventually assume each of the duties he or she previously performed.  But sometimes, the worker fails to meet your expectations.  You have the right to dismiss this employee as long as it is not due to the employee's disability, which constitutes discrimination under the Human Rights Code.

Be very careful in these instances:  What you may regard as a justifiable dismissal, the partially disabled worker may regard as discrimination on the basis of disability.  I would suggest you speak to me first before proceeding.