Ten More Mistakes Boards Make About Termination
Aug 21, 2023
Employers (I am looking at you, CEO and Board Chair!) make some common mistakes that cause them untold but unnecessary grief. Here are the ten more big ones.
This piece is an abbreviated (and slightly altered for the not-for-profit sector) version of a column by Howard Levitt in the National Post. Mr. Levitt is senior partner of Levitt Sheikh, employment and labour lawyers. He practices employment law and is the author of six books.
This past past week, Howard Levitt offered up the first half of his list of the Top 20 mistakes that employers make. Here are the rest of the blunders that continue to keep employment lawyers busy.
This piece is an abbreviated (and slightly altered for the not-for-profit sector) version of a column by Howard Levitt in the National Post. Mr. Levitt is senior partner of Levitt Sheikh, employment and labour lawyers. He practices employment law and is the author of six books.
11. Entering into fixed-term contracts
An employee terminated from a fixed-term contract is entitled to payment until the end of the contract, even if they get another job the day after they are terminated. If an employer wants to avoid severance costs, a good termination clause is far superior.
12. No consideration for a new contract
To be enforceable, an employee must receive something “new” and of some value to them in return for signing an employment contract. A bonus or salary increase might do. But if an employee is simply asked to sign, and receive nothing new that had not previously been agreed to, that employment contract and all the new language, such as a termination will be unenforceable.
13. Fumbling (or forgoing) an investigation when firing for cause
There is no legal obligation to investigate before firing for cause. A court may wonder why you did not even get the employee's side of the story before the dismissal.
14. Hiring an outside Investigator
Outside investigators are not worth the added costs and have additional problems. In almost every case, management itself or someone in HR should put the allegations to the employees and speak to the relevant witnesses before coming to a decision.
15. Trumping up a `for cause' termination
Be careful what you allege when you terminate for cause. If the allegations turn out to be false, the employee could recover additional damages. No judge likes false damaging allegations besmirching an employee's reputation.
16. Trumping up a `without cause' termination
Sometimes employers give a reason for a without-cause termination that later turns out to be false. One example would be indicating that a position is being eliminated then immediately posting for the same job. An employer merely needs to say that the employee is fired without cause and leave it at that.
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17. Maternity leave miscues
Sometimes an employer will hire a full-time replacement for an employee on maternity leave. But unless you are certain that you will rehire the woman on maternity leave into the same job, you are creating a case for violations of Employment Standards Acts as well as human rights legislation.
18. Reprisal
An aggrieved employer who is the target of an unsubstantiated claim might later choose to fire the employee who brought the claim. Employers should be cautious in order to avoid penalties.
19. Blindly accepting a vague medical `time off' note
Too many doctors hand out medical notes like toilet paper. Employers do not have to accept them and can require the employee's actual limitations from them and if they don't get them, send the employee to a doctor selected by the employer.
20. Termination paper trails
Drafting a detailed internal memo on the company's potential exposure and the negative effects of terminating an employee can come back to haunt an employer in court. They can lead to punitive damages.
For the full column, see the Financial Post section of the National Post (National Edition), August 12, 2023. This is of course information, not legal advice.
What are your main “pain points” dealing with termination and dismissal?
What advice would be most helpful to you?
And we always assume that you are asking for a friend!
Get in touch. We’ll address your questions and concerns in an upcoming blog post.
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