By Howard Levitt

11. Entering into fixed-term contracts

In most provinces, the courts have held that 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. Employers create such contracts to ensure the employee will have to leave when the term expires. But often they forget to terminate at the end resulting in the employee no longer being on a term contract and therefore entitled to full wrongful dismissal damages when they are eventually dismissed. If an employer wants to avoid severance costs, a good termination clause is far superior, provided that it is drafted properly.

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 an agreement, even on their first day of work, and receive nothing new that had not previously been agreed to, that employment contract and all the management friendly new language, such as a termination or non-competition agreement, will be unenforceable.

13. Fumbling (or forgoing) an investigation when firing for cause

There is no legal obligation to investigate before firing for cause. But if you don’t put the issues to the employee before they are fired, you are giving them a chance to “lawyer up” and come up with a better “story” at trial than they would have had if you had spoken to them at the time. You also may find that they did not do what they were accused of or they may provide a satisfactory explanation for what you perceived as misconduct which saves the dismissal costs and loss of a valued employee. A court also may wonder why you did not even get the employee’s side of the story before the dismissal.

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.