Over-investigating

Lawyers do not have the skillset for investigation. To put it directly, an investigator with a cross-examining style will only lead to allegations of bias or worse. Generally investigations should be done in-house or, if independence is required, use an HR consultant or, better yet, if the investigation warrants the cost, a retired judge. A retired judge will have the respect of all stakeholders, including the party investigated, and, most important, the court if the matter ever proceeds. Judges have the experience of sifting through conflicting evidence, getting to the bottom of differing facts and testimonies and making the appropriate assessment of credibility and other fact-finding.

The other problem with investigations as they occur today is that employers end up spending $50,000 (or more) to an investigator to assess an employee who could have been fired without alleging cause for a fraction of that amount.

Good investigations are not elaborate multi-week affairs that line the investigator’s pocket while providing little of comparable value. All an investigation legally requires is to listen to both sides of the story and speak to the relevant witnesses before coming to any conclusion. That should be done in a day or two, not dragged out as too many investigations at present are. And watch what you put in writing along the way.

Terminating without cause when cause exists 

If you have cause, why reward the employee by paying full throttle wrongful dismissal damages? And if you choose to terminate without cause, legally, you cannot argue later that you really had cause. Nor can you pay less. Great and desultory employees receive the same amount of wrongful dismissal damages.

If you allege cause in bad faith, the employee can recover additional damages, called “Honda” damages. You should never do that. But if you have a good, strong case for cause, two possibilities will flow. First, you will win the case, the employee will get nothing and a lesson will be taught to everyone else that misconduct will not be tolerated. Alternatively, at mediation or otherwise, the employee will either drop the case or you will settle it for much less than if you had not alleged cause. Why give up that leverage — and why do so many HR managers and lawyers for employers do just that?

Failing to provide references

Courts will punish you for not providing a deserved reference to an employee by rewarding them greater wrongful dismissal damages. That makes sense. A reference could help an employee find other work and re-employability is one of the biggest factors, actually the most significant, in determining how many months’ notice (i.e. wrongful dismissal damages) an employee is entitled to.

By not providing a deserved fulsome reference or only providing one specifying just length of service and position, you are depriving yourself of one of your greatest motivational tools. Employees who know that they will receive the same reference however they perform, may not try quite as hard to impress.

Failing to assist a terminated employee’s transition 

In the same way, anything that HR can do to assist a terminated employee in securing alternate employment (i.e. resumé assistance, etc.) will redound to their advantage. They might find work more quickly, which will reduce your severance obligation and it will present well to your other employees who are always looking to see how terminated employees are treated.

Introducing a new employment contract without providing anything in return

If an employee is not provided anything in return (called consideration) for a contract containing restrictive provisions such as non-solicitation clauses, termination clauses, etc., the contract will be entirely unenforceable. This is common when employees are asked to sign a contract on their first day of work. By then, they have already agreed to the essential terms (i.e. salary, position, location, etc…) so that anything they sign after that earlier (even oral) agreement without anything new being provided in return for this contract is totally unenforceable. The same applies to contracts signed during employment. It is for that reason that new contracts should always be provided in return for salary increases, bonuses, etc.

Not reducing salaries for lower accommodated positions

Employers have to accommodate medical disabilities by providing a position that the employee can perform. However, they only have to pay the salary that that position commands even if it is substantially less than the pre-injury job. That is true even if moving to that demoted job pre-injury would have constituted a constructive dismissal. Not reducing that salary not only costs the employer money unnecessarily, but demotivates the employee to return to their previous position when they are able to.

Alleging frustration without medical information

If an employee has been disabled for a very long period relative to the length of their employment and the medical evidence is that the medical condition will continue indefinitely, the employee can be fired for frustration with payment of only the minimum provisions in the Employment Standards Act.

But you have to prove not only that they have been gone for a long time but that the disability will continue indefinitely. Too many employers allege frustration without first seeking current medical evidence. The employee, lawyered up, will then claim that they would have been able to return to work at the time they were dismissed and will invariably find some doctor to support that position. Such a scenario can be avoided if the employer asks for current medical evidence before making their decision. At that time, those employees who want to remain on disability are motivated to obtain medical evidence saying that their condition shows no signs of recovering. And that is just what you need to prove frustration.