Checklist in Reviewing Termination Decisions - Volunteer Lawyers Service

Checklist in Reviewing Termination Decisions

Legal Inquiry

Is there a policy and has the organization followed its disciplinary procedures? (See attached expanded checklist)

Is the employee's improper conduct or failure to respond to corrective suggestions documented?

Have any representations, either oral or written, been to the employee about continued employment?

Is the employee a member of a Union or protected group under the Human Rights law?

General Considerations

Does a review of the expanded checklist demonstrate that the terminations supported by the facts? Is the decision fair; accurate; consistent with policies and treatment of others; timely; and supported by documentation and investigation?

What is the effect of the termination upon morale in the department, division, organization?

Is this type of termination which might induce non-unit employees to seek union representation?

Is the supervisor or HR manager aware that:

i. The disciplinary interview should be private and remain confidential?

ii. The disciplinary review should be conducted in a calm manner?

iii. They should avoid name-calling and unsubstantiated charges of lying, dishonesty, or criminal or immoral behaviour?

If the answer to any of the questions listed below is other than the designated one, the employer should re-evaluate the appropriateness of the termination decision.

EXPANDED LEGAL CHECKLIST

A. Disciplinary Procedures:

The common law may impose an implied contract between employer and employee to follow disciplinary procedures established by the organization. Failure to follow this procedure may constitute a breach of the covenant of good faith and fair dealing or a wrongful termination.

QUESTIONS	YES	NO
Were the corporation's procedures and other customary practices followed before the decision made to terminate the employee*	X
Has the employee received the requisite verbal warnings?	X
Has the employee received the requisite written warnings?	X
Did the employee have fair advance notice of the standards by which his behaviour/performance would be judged?	X
Did the employee have an opportunity to take constructive corrective action?	X
Did the employee have a chance to give his/her side of the story	X

(* For example, is there a job description? Did the employee receive a copy? Is there a performance appraisal given? When, How often? Are there policies for all these procedures? Was there, in writing, proof that the organization was there to help the employee change or was the employee left on their own to change?)

B. Sufficiency of Documentation:

The common law usually takes the position that if it isn't in writing, it didn't happen

QUESTIONS	Yes	No
Do the documents demonstrate that the termination is adequately supported by facts?	X
Is the termination fair and equitable? For example: Would the employee's termination offend public policy? Was the employee terminated for exercising a right such as jury duty, political and/or religious holidays/beliefs? Was the employee terminated for refusing to participate in any activity which would constitute a violation of the law? Was the employment terminated to retaliate against employee's reporting any alleged violation under the Employment Standards Act or Human Rights Act ?		X X X X
Would termination of the employee prevent the vesting of benefits in the immediate foreseeable future? For example: Pension or retirement benefits (within one year)? Bonuses (within one month)?		X X
If the employee was accused of dishonesty or serious misconduct, did a fair and honest investigation support the allegation? For example: Are any other employees suspects? Are any witnesses credible? Disciplinary action suited to the infraction?	X X X	X
Is the employee's conduct sufficient to justify termination at this time?	X
Are there extenuating circumstances or mitigating factors which justify a lesser penalty?		X
Does the employee's prior disciplinary record support termination?	X
Consistency: Have other employees engaged in similar conduct been terminated?	X
Timeliness: Are both the documentation and the decision to terminate timely?	X
Is the decision substantiated with facts rather than merely subjective opinion?	X
If the termination is based on results of performance appraisals or evaluations, are they objective and directly related to the job skills?	X
Is the articulated reason for the termination the real reason rather than pretext?	X
Does the employee have a satisfactory or better job appraisal, work commendations, recent promotions, raises or bonuses which negate the articulated reason for discharge?		X

C. Representation of Continued Employment:

An employer's representation to an employee, whether in the form of expressed or implied promise, as giving rise to a perpetual employment contract unless the employer shows good cause for terminating the employment relationship. In addition, such representations may constitute a breach of the covenant of good faith and fair dealings, a wrongful termination, negligent misrepresentation and/or fraud.

QUESTIONS	YES	NO
Were there any representations other than the employee was terminable-at-will made to the employee? For example: Was the employee told his job was secure for life or as long as he wanted it or as long as the organization keeps growing?		X
Are the representations true?	X
If representations were made to the employee about continued employment, were there any conditions to continued employment, such as the employee's satisfactory performance?	X
Did the employee give up any other employment opportunities based on representations or promise?		X
Was the employee informed that continued employment was dependent upon the corporation's discretion or business needs?	X
Was the employee advised that improper conduct or failure to correct actions would result in discharge?	X

Protected Groups

Federal and provincial Human Rights legislation prohibit discriminatory treatment of protected groups and prohibit policies which adversely impact such persons more than non-protected persons.

QUESTIONS

YES

Did the employee's protected status adversely affect in any manner whatsoever, the employment decision? For example:

Race

Sex, such as:

General presumptions of weakness or frailty?

Reproductive or childbearing concerns?

Unwanted sexual advances or harassment?

Marital Status, such as:

Presumption that employee won't want to travel or work shift because married?

Presumption that employee is not responsible because not married?

Terminated because of anti-nepotism policy? (If so, is it possible to avoid a supervisory relationship with relative?)

National origin and ancestry

Religion, such as:

Have reasonable efforts been made to accommodate the employee's religion?

Age (over 40) such as:

Generalized presumption that time is passing by the employee or that he is incapable of keeping up with technological innovation?

General presumptions of weakness or frailty

Attempts to cut direct costs by terminating employees with greater benefits and seniority?

Disability, such as:

Has the supervisor discussed with the employee possible ways to accommodate the employee in this job?

Can the employee perform another job with similar pay?

LEGAL ACTIONS

Proper procedures by the corporation should help to minimize related judicial actions challenging an employee's termination such as:

breach of employment contract

employment discrimination

breach of covenant of good faith and fair dealing

wrongful discharge

negligent or intentional misrepresentation

fraud

intentional or negligent infliction of emotional distress; and

slander, defamation and libel

This material is for discussion only and does not conclusively state the opinion of the author or firm on the subject matter nor does it provide an exhaustive review thereof.