New Years’ Resolutions: The HR Version

If you’ve been reading our blog, you have seen our 2025 Year in Review (Part 1, Part 2), where we covered the most notable cases, legislative updates, and HR trends from the past year. If it felt like a lot of information, that’s because it is!

As we often say, it is important to stay up to date as the laws evolve. It is equally important to take those developments into account and ensure that you have a set of best practices that are in place and up to date.

Doing so will help you to manage your business and your workforce while reducing labour costs and potential liability. Although this is directed primarily to employers, it contains information that is useful for individuals as they attempt to understand their rights and obligations within the workplace.

Without further ado, while I know January is already in the books, here are our top recommendations for (HR) new years’ resolutions. 

Resolution 1: Invest in Strong Employment Contracts

Contracts remain the single best way for employers to protect their interests, but they must be well drafted and updated regularly.

We always recommend the following when drafting strong employment contracts:

• Keep it concise: effective termination clauses have shifted from full pages to single, well-drafted paragraphs.
• Avoid extraneous language: it is a best practice to avoid unnecessary wording, such as now notorious phrases like “at any time” or “sole discretion” in termination clauses to prevent providing additional grounds to challenge the clause. The simple rule should be that if the words don’t add anything, then they should be removed.
• Mirror proven language: for a termination clause to be enforceable, it should clearly and unambiguously contract out of common law and limit entitlements to statutory minimums. As discussed in our Year in Review, using the language from the Datastealth¹ decisions is advisable as that clause was upheld by the Ontario Court of Appeal.
• Regular reviews: do not rely on templates that are even a few years old. The law changes so rapidly that “updated” contracts from two years ago may already be unenforceable.

Resolution 2: Conduct Proper Investigations

When misconduct is suspected, the process followed is often as important as the misconduct itself. Since courts set a high bar to prove just cause, it is always recommended to investigate prior to alleging cause, and that should include confronting the employee and giving them an opportunity to respond to the allegations or concerns.

Investigations are critical because they allow the employer to assess the impact on the ongoing relationship, which is fundamental to establishing just cause. As we saw in the Fiera² decision discussed in our Year in Review , the employee in that case:

• provided false answers,
• was evasive throughout the investigation process,
• denied any wrongdoing on three separate occasions, and
• even claimed the video footage the employer put forward was “fake,” storming out of all three investigation meetings.

Had the employee been contrite and acknowledged his misconduct when caught, the employer might have chosen a lesser disciplinary measure. Even if the employer had proceeded with the dismissal, a court might have found that the employee’s contrition suggested the relationship could have been salvaged, potentially entitling the employee to severance. Remember: there’s no such thing as near cause.

 Best practices for workplace investigations include:

• Investigate properly: always conduct an objective, timely, and thorough investigation before moving to a just cause dismissal.
• Use paid administrative leave: if an employee’s presence poses a risk during an investigation, place them on paid administrative leave, not a suspension. A suspension is disciplinary in nature and suggests that guilt has already been established, whereas administrative leave protects the employer’s argument that they are still assessing if the relationship is irreparably harmed.
• Confront the employee: best practice involves presenting the employee with the evidence (e.g., video footage or time sheets) and assessing their response. Dishonesty or a lack of remorse during this process can significantly strengthen an employer’s case for just cause.
• Don’t rush to judgment: avoid acting until you are certain of the facts; backtracking after a dismissal for cause is incredibly expensive.

Resolution 3: Be Strategic with Mitigation and Litigation

While employment-related legal disputes can sometimes be emotional, it is important to make all decisions based upon solid business practices and not based upon emotion. This is true for employees and for employers.

There are many strategic approaches available that will reduce costs in employment disputes; we always advise our clients to consider the approach that is most cost effective and aligned with their needs.

Here are some of our top tactical tips for reducing costs in employment disputes:

• Weigh the costs and benefits: before starting or defending a claim, calculate your potential legal fees against the potential savings/awards. Money is a significant factor, but you should also consider:
• • Use of resources;
  • Risk;
  • Impact on reputation; and
  • Anything else that is relevant.

It can be a poor business decision to spend $50,000 in legal fees to save $10,000. That said, in other cases, that could be a legitimate investment designed to discourage future claims. All factors should be considered.

• Offer reinstatement strategically (or, should I stay with my ex-employer?): if an employer faces substantial liability for wrongful dismissal, they should consider offering the terminated employee their job back (or a comparable role). Unless the dismissal was humiliating or involved harassment, the employee may be legally required to accept the offer to fulfill their duty to mitigate; if they don’t, it might reduce your potential legal costs. The flip side of this for employees is that there are some situations where their obligation to mitigate means they have to accept continued employment with the employer who dismissed them (actually or constructively). If continued employment is rejected unreasonably, the employee’s notice entitlements could be reduced significantly due to a failure to mitigate.
• Consider continuing salary and benefits strategically during negotiations: not only is this a good faith gesture that can facilitate a reasonable resolution, but it can reduce the employee’s overall claim, ease tensions, and lower the risk of litigation. If a deal is reached, the amounts provided during negotiations can be credited towards the severance provided. We often advise our employer clients that there is little harm in continuing salary and benefits if it is already part of what they owe in severance.

Resolution 4: Navigate Accommodation and Return-to-Office (“RTO”) Mandates Properly

RTO mandates are still a hot topic, and the expectation is that employers will continue to call employees back to the office. This continues to be a highly contentious issue. Many employees believe, rightly or wrongly, that they have a right to work from home; many employers believe, rightly or wrongly, that they can insist that all employees return to the office. As is often the case in the world of employment law, the reality is somewhere in the middle and is highly fact-specific.

The bottom line is that there must be:

1. clear contractual language allowing the employer to recall an employee to the office, or
2. an existing right based on past practice,

otherwise the employee may have accrued the right to work remotely, and making a unilateral change risks a constructive dismissal claim. Where an employer has the right to recall, an employee’s refusal to return to the office risks disciplinary action and potential job abandonment.

Further, an employee may acquire the right to work remotely as a human rights accommodation. Such needs cannot be ignored by employers, as doing so risks a human rights claim. Requests to work remotely based on human rights needs must be taken seriously, as these trigger the duty to accommodate.

Below we outline some evergreen advice with respect to RTO mandates and the duty to accommodate: 

• Who has the right? Employers should ensure they have the right to recall an employee back to the office prior to implementing such a directive. Employees who have been recalled should make sure that the employer can actually call them back; if not, they can object to the recall if they choose.
• Document remote work as temporary: the best practice is to have documented from the start that remote arrangements were temporary. When bringing staff back, use phased transitions and proactive dialogue to address concerns rather than sudden mandates. It should be absolutely clear that the employer retains the discretion to change the relationship and insist that the employee return to the office. This is particularly important where there is no contractual right to recall, or no documentation about the temporary nature of the remote work arrangements.
• Human rights considerations: employees seeking to work remotely because of a human rights need (e.g.: childcare, disability), should remember that the employer has the right to request sufficient information to accommodate them, and should be prepared to provide the employer with the requested information. Employees should also keep in mind that they are not entitled to their preferred form of accommodation. For example, if a different form of accommodation would be reasonable, then the employee cannot insist upon remote work.
• Accommodation neurodiversity: with the rising awareness of neurodiversity in the workplace, ensure that requests related to ADHD or autism spectrum disorder are handled with the same care and consideration as physical disability claims. In short: prioritize a documented, reasonable process over an employee’s ideal outcome, and insist on mutual cooperation.

Pith and Substance

Although January is behind us, it is never too late to implement best practices that provide your organization with cost certainty and clear workplace rules. You can better protect your interests by:

• investing in strong contracts,
• having your employment agreements reviewed,
• conducting proper investigations,
• approaching disputes strategically, and
• navigating return-to-office mandates³ with care.  

We regularly work with employers and employees to help them implement the above.

Ultimately, if you work with counsel and implement these HR resolutions, chances are you can expect a smooth 2026 from an employment law perspective. Why wait until 2027? If you think you need an employment lawyer now, you probably do!

Sources

1. Bertsch v. Datastealth Inc., 2025 ONCA 379 (CanLII), <https://canlii.ca/t/kc65x>, retrieved on 2026-02-02
2. Abbasbayli v. Fiera Foods Company, 2025 ONSC 3240 (CanLII), <https://canlii.ca/t/kch3g>, retrieved on 2026-02-02
3. Zaman, N. (2025, September 2). “I want it that way”: Big banks direct employees back to office. Canadian HR Law | Canadian HR Reporter. https://www.hrreporter.com/opinion/canadian-hr-law/i-want-it-that-way-big-banks-direct-employees-back-to-office/393289