When it comes to employee dismissals, it is in an employer’s best interest to follow human resources best practices. Terminating an employee has many legal considerations. It is important to understand the do’s and don’ts to avoid legal challenges for wrongful dismissal.
What is the law behind employee dismissals?
The Employment Standards Act (ESA) states the legal terms and conditions for employee dismissals, under the definition for termination of employment. An employee is terminated if an employer:
- Dismisses or stops employing an employee; this is applicable to bankruptcy of the employer
- Constructively dismisses an employee, and the employee resigns
- Lays off an employee, longer than a temporary layoff
Other expressions for employee dismissals include: fired, terminated, let go, discharged, dismissed and permanently laid off.
How to Dismiss an Employee: The 3 Do’s and Don’ts
When it comes to dismissing an employee, the ESA does not require an employer to give reason for termination. While this is applicable to most dismissals, there are certain situations where an employer cannot terminate an employee, even with severance pay. It is advised that an employer should always seek advice before dismissing an employee.
- Give written notice of termination, following the legal obligation of employers to provide adequate notice period; this is based on an employee's length of employment.
- Provide termination pay if dismissal occurs without notice; this is also known as severance pay.
- Ensure that employment contracts clearly state the terms and conditions for termination clauses; this should meet the minimum standards set out by the ESA.
- Refuse a positive reference; it is advised for employers to confirm their previous employees' dates of employment, position, title, and responsibilities without further comment.
- Assume just cause without proof of reasonable grounds to terminate an employee.
- Misinform employees of their termination package; the terms and conditions should be clearly stated in your employment contract.
Employer Need-to-Knows: Constructive Dismissals
In addition to fully terminating an employee, a dismissal can occur if an employee resigns in response to organizational changes. This is known as a constructive dismissal. Specifically, these situations may occur when an employer makes a significant change to a fundamental term or condition in an employee’s employment without their actual or implied consent. Constructive dismissals also refer to a series of small changes, which with time, effect an employee’s work and eventually causes resignation. This area of the law is complex and difficult; we advise employers to ask for legal help to avoid any challenges.
Are you still thinking about your legal obligations around employee termination?
We can answer your questions about employee dismissals, or any other employment-related questions you might have. Employer Line offers a complimentary advice line and we're available for your call 24/7. It is in your best interest to pick up the phone and speak to one of Peninsula’s HR experts for a free consultation.