These are the biggest mistakes that employers make

By Howard Levitt

If there were no bloopers, there would be no need for employment lawyers. What are some of the common mistakes employers make that cause them untold but unnecessary grief? Here’s part one of my list of the Top 20 mistakes employers make.

1. Ambiguous warning letters

The standard HR warning letter says something like this: “Further misconduct may result in future disciplinary action, up to and including dismissal.” That is not much of a warning at all if you hope to dismiss an employee for cause the next time they do it. A court will say that this warning specifies that further infractions may result in no discipline at all and, if there is going to be any discipline, it could be anything within a broad range, with discharge only occurring for the most serious of potential offenses.

But invariably that is not what employers want. They want to fire the employee the next time they do it and not pay severance. Instead, your problem would be solved by saying what you intend ie “Any further incident will result in your dismissal for cause.” That is the type of unequivocality courts require in building up a case.

2. Termination niceties

When employees are terminated in this email age, it is common for them to receive emails and texts from everyone they ever worked with expressing their shock and dismay at their firing and stating how valuable they had been to the company. Of course, many of these messages are entirely disingenuous and boil down to either virtue-signalling or an attempt to show sympathy for the employee’s plight. But when it comes to a court case and the employer argues cause for discharge, those letters can be lethal arrows penetrating the heart of the case. Executives, in particular, should be circumspect about what notes they send when employees are dismissed, especially if they are unaware of what the actual reason for termination was.

3. Overdocumentation

This is one of the biggest errors employers currently make. Human resources departments have become so focused on ensuring a case is “papered” that they take it to extremes, evidencing the good, the bad and the ugly. All of that documentation has to be produced in the context of a court case and, more often than not, especially since the senders are not legally trained and do not understand how an email or record can be used, will be fatal to what the employer tries to argue because it will reflect a more nuanced relationship than what the employer hopes to portray. I have had too many cases where I have had to tell employer clients that, good as their case ostensibly was, there is something in the written record which is fatal.

4. Condoning

When you have cause to fire an employee, pull the trigger. If you wait and keep the employee too long, you will be unable to rely on the “cause.” The court will say, if he was that bad, you would not have kept him. After all, cause means that the conduct was irremediable and the employee’s employment unsustainable.

5. Alleging cause when there is no real case

Employers do it hoping either to dissuade the employee from suing or in the vainglorious hope of settling for a reduced amount. That might have worked years ago. But now, such an attempt will bring tears of joy to contingency lawyers’ eyes. When employers are found to plead cause in bad faith, knowing they have none, the courts award additional damages. Don’t make that mistake.

6. False warnings

Clients, especially new ones, often assure me that the employee they are calling about received “warnings.” But those warnings are too often actually reprimands or even just training and guidance. A warning has to actually warn of future consequences. The employee has to be warned that they will be fired if the misconduct recurs. Other clients actually provide warnings but do it orally. The courts have little interest in that unless the employee admits to receiving the warning, which they likely won’t. Courts assume that, if an employer actually provided a warning, they likely did it in writing. This is especially true for sophisticated employers with HR functions who are deemed to know better — even if they don’t.

7. Inconsistent administration of policies

If you have a policy that you want to enforce, enforce it every time. Quite apart from the fact that it is never good for morale for employers to play favourites, it is an excellent defence in a dismissal case for an employee to say, “Jane breached this policy and did not get fired so I believed the company did not view it as a firing offense.”

8. Trying to do the right thing

This takes many forms. Providing a reference to an employee for whom you wish to assert cause. Not alleging cause when you have it so the employee can collect EI. Providing a wage increase because others received it when you should be building a case for dismissal. The list goes on. Too often, doing the right thing is the wrong thing.

9. Demanding a release

Sometimes employers will try to make the payment of guaranteed contractual terms conditional upon signing a release. In other words, if you have a contract with a termination provision for 12 months pay, don’t ask for a release unless you offer more than that. One recent case found that demanding a release for what you were obligated to pay the employee anyway, repudiated your contact permitting the employee to sue for more.

10. Slow responses

Sometimes employers fail to provide a record of employment or statutory minimum payment under employment standards legislation on time to a terminated employee. Recent decisions have awarded punitive damages for that. Keep your payroll practices sharp and in place during the termination process.