1. HR Compliance: Legal Issues Overview
September 24, 2013
Matthew Vella, Principal, Vella Labour Law
Maysa Hawwash, Solutions Manager, Drake International
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2. For more information, call 416.216.1067
Topics
• Employee Acquisition
• Employee Management
• Terminations

3. For more information, call 416.216.1067
Employee Acquisition
• Job Postings and Interviews
• Some key mistakes that employers
make during the acquisition of a new
employee
– Contracts are only for
management
– “Offer letters” suffice as contracts
– Contracts are to be given out with
the employee’s first day
paperwork

4. For more information, call 416.216.1067
Contracts are Only for Management
• NO!
• Contracts are an integral part over every employment
relationship. Setting out the terms and conditions of
employment is integral.
• We have seen a dramatic increase in law suits from blue
collar employees and administrative staff.

5. For more information, call 416.216.1067
Offer Letters – Don’t Use Them
• Avoid very short offer letters
• You have now “contracted” with the employee but only
for the terms set out therein
• Possible ramifications:
– No temporary layoffs
– The sky is the limit on reasonable notice damages
– Alterations of position will vitiate the contract

6. For more information, call 416.216.1067
Offer Letters Followed by Contracts
• This is a crucial pitfall
• John is given an offer letter on June 15th stating that he
will commence his role as director of IT on July 5th at a
salary of $78, 000.00.
• On July 5th John attends work and is given a contract
with various other terms.
• The July 5th contract is void. John already had a
contract (the offer letter) and the moment he set foot at
work that contract became binding. The July 5th contract
suffers from a failure of legal consideration and will be
unenforceable when John is terminated

7. For more information, call 416.216.1067
Contracts on the First Day of the Job
• Often employees are given a package on their first day
of work
• Do not include the employment contract in this
package.

8. For more information, call 416.216.1067
What Do We Do?
• Provide an offer letter that specifically says it is subject
to (and that the employee’s new position is subject to)
the signing of a full employment contract
• Provide the employment contract prior to the employee
commencing work.
• Any policies that are incorporated into the contract by
reference should also be provided to the employee at
this time

9. For more information, call 416.216.1067
Contract Pitfalls
• Contracts can (and should) include provisions respecting
a broad variety of topics, but contracts must be tailored
to the position for which they are being used.
• An ESA Mins clause on termination and severance pay
limiting the employee to the statutory minimum payments
on termination
• A layoff provisions allowing for temporary layoffs
• Don’t use templates. Period.

10. For more information, call 416.216.1067
Employee Management
• Proper methods of managing for positive workforce and
employee engagement
• From a legal perspective when we talk about employee
management we are talking about either:
– Disciplinary issues or
– Performance issues
The two are not the same and should not be treated the
same

11. For more information, call 416.216.1067
Employee Management
• Disciplinary issues should follow a program of some sort
of progressive discipline
• Escalate from verbal warnings to written, to further
written to suspensions and terminations
• For non-culpable behavior it is different. Coaching,
warnings, performance improvement plans, termination
but almost never for cause
• In Ontario at least, “for cause” terminations based on
performance issues are almost impossible to win unless
the employee is relatively new

12. For more information, call 416.216.1067
Employee Management – Pitfalls
• Micro-managed employees will take stress leaves, file
harassment complaints, and make constructive dismissal
suits
• You have the right to manage. You have the right to
discipline. But don’t overdue it.
• Constructive dismissal based on “poisoned working
environment”
• Beware of overzealous discipline
• Beware of PIPS that God himself could not possibly
complete

13. For more information, call 416.216.1067
Terminations
• No problem, because you have a contract!
• If an employment contract has a valid and enforceable
termination provision you will save a lot of headache and
legal fees.
• If you do not have a contract then you need to figure out
a reasonable severance package

14. For more information, call 416.216.1067
Terminations
Common pitfalls/mistakes
• Telling an employee why he or she was fired when the
termination was no for cause.
• Not obtaining a release because you think your
severance package is reasonable so the employee won’t
sue.
• Seeking a release when all that is provided is that the
employee was entitled to under his contract or pursuant
to the ESA.

15. For more information, call 416.216.1067
Termination Pitfalls
• The other major pitfall that I encounter all the time is the
“one size fits all” approach.
• “We provide two weeks per year of service and never
more”
• The courts use factors called Bardal factors to determine
reasonable notice. Those factors are: age, length of
service, position, qualifications and availability of similar
employment.

16. For more information, call 416.216.1067
Termination Pitfalls
Public terminations
• Emails about the termination that slander or embarrass
the employee even after she is gone
• Lying during terminations or about the reason for the
termination
• Terminations based on zero tolerance policies
• Terminations based on accusations of misconduct for
which the employee was not given a chance to respond
prior to termination

17. For more information, call 416.216.1067
Questions?

18. For more information, call 416.216.1067
Free Offer
We’re offering a
FREE
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Contact Maysa to take advantage of this exclusive offer!
mhawwash@na.drakeintl.com or at 416.216.1067

19. Thank You For Attending
For questions, please contact Maysa Hawwash
National Manager – Talent Management Solutions
mhawwash@na.drakeintl.com
416.216.1067