By Howard Levitt
11. Entering into fixed-term contracts
12. No consideration for a new contract
13. Fumbling (or forgoing) an investigation when firing for cause
14. Hiring an outside investigator
I recommend against bringing in outside investigators almost all of the time. They are not worth the added costs and have additional problems discussed in other columns. 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 for the reasons discussed in item 13 above.
15. Trumping up a ‘for cause’ termination
Be careful what you allege when you terminate an employee for cause. If the allegations turn out to be false, the employee could recover additional damages. No judge likes false damaging allegations to be placed carelessly on the public record besmirching an employee’s reputation.
16. Trumping up a ‘without cause’ termination
Sometimes employers give a reason for a without-cause termination — which isn’t even required — that later turn out to be false. One example would be indicating that a position is being eliminated due to restructuring then immediately posting for the same job. This kind of unforced misstep will only incent the employee to sue. An employer merely needs to say that the employee is fired without cause and leave it at that.
17. Maternity leave miscues
Sometimes an employer will hire a full-time replacement for an employee on maternity leave for good reasons. 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 the maternity leave section of the Employment Standards Act as well as human rights legislation.
18. Reprisal
An aggrieved employer who is the target of an unsubstantiated OHSA, WSIB, human rights or employment standards claim, might later choose to fire the employee who brought the claim. But reprisal for filing any of these complaints provides some of the greatest remedies that the legislation contains. Employers should be cautious in dealing with employees who have filed complaints in order to avoid such 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, restrictions and functionalities from the doctors and, if they don’t get them, send the employee to an independent medical examination by a doctor selected by the employer.
20. Termination paper trails
Drafting a detailed internal HR memo on the company’s potential exposure and the negative effects of terminating an employee can come back to haunt an employer in court. Such memos are producible in litigation and will inform the judge not only of the weaknesses in your case but that you alleged cause while cognizant of those weaknesses. That could lead to punitive damages.