CHAUDHRI: What resolutions should employers make this year?

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The new year is in full swing and the novelty of a fresh start is already beginning to wane, leaving most of us resorting to our old habits and predilections.

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Employers, of course, are no different; repeating the same mistakes over time even with the benefit of experience and resources. But perhaps 2024 will be different and prudent employers will resolve to plan ahead rather than react and pay the consequences, however dreadful.

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The recent case of Kavita Lefebvre and Gisborne Holdings Ltd. provides some remarkable guidance for employers to build a robust resolutions list this year.

Ms. Lefebvre was hired by Gisborne as a departmental administrator in April 2022 to cover a parental leave on a fixed 18-month contract. Her rate of pay was $25.95 an hour and she would earn a $5,000 completion bonus if she worked the entire term.

Ms. Lefebvre received some training but at trial gave evidence she was not adequately trained and that she struggled to keep up with the workload of the role.

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Approximately six weeks after she started, Ms. Lefebvre got into a heated phone conversation with Gisborne’s largest client who was upset she had not scheduled a service appointment as expected. During the call, both Ms. Lefebvre and the client raised their voices.

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Ms. Lefebvre reported the incident to her manager and ultimately apologized to the client for her “extraordinary testiness.”

After a meeting with her manager and HR, Ms. Levebvre wrote an email to HR contesting several allegations levied against her, including that her manager did no appropriate due diligence to investigate the client complaint and that it was “patently unfair and borderline untrue” that Gisborne’s problems with the client were “created by her.”

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Upon receipt of the email, Gisborne fired Ms. Lefebvre effective immediately, offering her two additional weeks of pay.

Ms. Lefebvre sued for wrongful dismissal damages. She was awarded damages equal to the balance of the 18-month contract (after working only six weeks) in the amount of $81,100. The court noted her employment contract did not authorize Gisborne to terminate Ms. Lefebvre without cause. The court also found that dismissal for cause was not a proportional response to Ms. Lefebvre’s email.

So what resolutions should employers make this year in light of this?

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Be weary of imposing policies you cannot deploy effectively: While most employers don’t have a progressive discipline policy, those that do tend to forget to follow their own rules. Gisborne, for example, was found in this case not to have followed its own progressive discipline policy that required a verbal warning, written warning and suspension.

Progressive discipline policies place positive obligations on employers, often for good reason. Ensure you have the resources in place to effectively deploy your policy.

When terminating for misconduct, get advice: Gisborne terminated Ms. Lefebvre after her heated client exchange and sending an alleged insubordinate email to HR.  Prior to her termination, however, she sent an email challenging her employer’s treatment of her. Terminations that flow from misconduct allegations are sensitive and fraught with legal risk and increased liability. Employers must be careful and seek advice prior to terminations to protect against allegations of bad faith and reprisal.

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Employment contracts should always contemplate termination: Gisborne’s employment contract never considered what Ms. Lefebvre would be entitled to, if she was terminated prior to the end of her 18-month contract. At law, her early termination entitled her to the balance of the contract even though she only worked for six weeks.

Every employment agreement should contemplate termination and place limits on employee entitlements where reasonable. This is the best way for employers to limit liability in the event they must terminate an employee. If you do not have updated employment agreements, have them drafted now.

Have a workplace issue? Maybe I can help! Email me at [email protected].

The content of this article is general information only and is not legal advice.

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