Last week, the 2018 edition of the Osgoode Certificate in Advanced Human Resources Law for Senior HR Executives kicked off with the first two days of classes. We have more than thirty senior HR folks participating this time, and the first two days were filled with insightful questions and comments. As I said in my introductory comments, one thing that I love about this course is that due to the significant experience in the room, the learning flows both ways.
I also had a sentimental moment at the outset as I reflected on the genesis of this course. Many years ago, I used to chair an annual Employment Law Update at Osgoode, which was a one day conference filled with brief discussions of timely issues. We received many requests for a more in-depth course, which led Osgoode to ask me to design a Certificate course in HR Law geared toward HR Professionals. Thus, the Certificate in Human Resources Law for HR Professionals was born, and I was privileged to be the Director. The course was designed to be five days of in-depth discussion of core issues in Employment Law, including hiring, discipline, and, of course, dismissals. The course has evolved to reflect changes in the law and best practices, and now includes a full day on investigations and a half day on social media issues.
It didn’t take long for people to begin asking about “the next level”. As a result, Natalie MacDonald (who I invited to be my Co-Director after a few years) and I designed the Advanced course, which we are Co-Directors of. This course is hands-on – there are no slide decks or presentations – it is a non-stop discussion/group exercise based on real-life scenarios (exagerated for effect or humour, in some cases).
This year, I led the first two days and Natalie MacDonald will lead the last two. Rudner Law is committed to education, and my team was excited to support me. Last year, Brittany Taylor and Nadia Zaman joined me. This year, Brittany joined me on Day 1 and the newest member of our firm, Shaun Bernstein, joined me on Day 2.
So what did we learn?
- The hiring process can be a minefield, and not just because of the risk of a bad hire;
- It is all too easy for an unsuccesful candidate to allege that they were discriminated against on the basis of a protected ground;
- The best way to protect yourself from a human rights complaint (in the hiring process or any other context) is to
- Avoid knowing any more than you have to about an individual’s personal life
- Document all reasons for hiring, promotions, discipline and dismissal
- Employers have to be cautious about inducement and misrepresentation in the hiring process;
- Most organizations make the mistake of failing to have a candidate sign an Employment Agreement before confirming the hire;
- Many organizations continue to use short offer letters and inadvertently enter into contracts that do not cover all key terms and conditions;
- Resignation clauses should specify a notice period and not a “minimum” amount of notice;
- The law regarding termination clauses changes almost daily, but a well-written clause with a proper saving provision will withstand judicial challenge;
- You do not need a “cannabis policy”, but you should have a Drug and Alcohol policy that
- Confirms that impairment at work is never acceptable
- Encourages employees to report addiction, and offers accommodation while warning of discipline if addiction is not disclosed but results in impairment at work;
- Requires reporting of all medication that could cause impairment at work (not just cannabis)
- Tempers any absolute ban with an acknowledgment that some employees may consume alcohol while carrying out their duties (think client dinners)
- Includes a mechanism for employees to request accommodaiton
- Sets out clear consequences of any breach
- Poor performance can be cause for discipline and even dismissal in the right circumstances;
- When assessing whether misconduct or poor performance should result in summary dismissal, a contextual approach must be used – the misconduct cannot be considered in isolation;
- While Judges often say that “some lesser form of discipline was appropriate” when rejecting summary dismissal, the reality is that employers have very few disciplinary tools available to them;
- A true Performance Improvement plan is intended to help the employee improve, not build a case for dismissal – it should include mechanisms to assist the employee, sufficient time for the employee to demonstrate improvement, and enough feedback for the employee to know whether they are improving in the eyes of the employer.
I wish all of this year’s registrants all the best, encourage them to keep in touch, connect with us on social media and sign up for our Newsletter. I also repeat my invitation:
send me your employment contract templates and I will review them for free, with no obligation.
I am confident that in almost every case, I will identify ways in which they can be improved.
