legal words
to wrongful dismissal damages, general
damages and punitive damages. The common
range for damages for a breach of
human rights in Ontario at the Tribunal
or in the courts is $5,000 to $35,000, although
there are cases with damage
awards of significantly higher. Employees
can also be awarded loss of wages until reemployment,
loss of benefits and damages
for injury to dignity and self-respect.
HOW TO AVOID OR MINIMIZE
THE RISK
There are a number of ways for a company
to minimize its exposure and risk for a
high-risk termination. Employment agreements
with a termination clause can limit
the common law termination amounts an
employee may be entitled to.
Employee handbooks and company
policies can offer legal protections to
companies, including language regarding
group insurance benefits during a leave
of absence and when those benefits can
be terminated, the reporting of absences
from work, when medical documentation
is required and obligations to return to
work following a leave of absence.
Performance documents can be key
to defending a case. There is a common
misconception that warning letters and
performance reviews will only be useful
for a just cause termination. However,
documents relating to performance issues
can be very helpful in defending all types
of legal proceedings, including human
rights, employment standards, workplace
insurance and/or court actions. If a company
is alleging performance concerns as
the reason for the termination, these types
of documents are essential in proving
those allegations.
Before making the decision to terminate,
a company should consider the other
options, including delaying the decision to
a time when it is less risky to proceed. For
those employees suffering from a disability
and on a lengthy leave of absence, frustration
of contract can be considered. With
a successful case of frustration, only statutory
termination entitlements have to be
paid. No common law amounts are owed
and, subject to the duty to accommodate,
this can also protect against potential human
rights violations.
With restructuring, other options to
terminating an employee on a leave of
absence are to delay the termination or notify
the employee of the restructuring, but
that their employment status would not
be affected until they return to work. That
way, there is not a negative impact on employment
compared to if the company had triggered
the termination. Companies should also
have documentation to support the restructuring
employees that were selected for termination
as a defence to a claim.
If the decision has been made to terminate
a high-risk employee, a company may
want to consider providing a more generous
termination package to encourage the
employee to accept. Obtaining a proper
release that covers all claims including the
termination of benefits and human rights
violations is important. ■
Megan Burkett is an employment lawyer
with Keyser Mason Ball, LLP.
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insurance or disability benefits
and the decision behind the
16 ❚ MAY/JUNE 2016 ❚ HR PROFESSIONAL
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