Keeping records is important when terminating workers on leave

By LegalMatters Staff • When company restructuring results in staff cuts, employers would be well advised to keep a record of their decision-making process, especially when it comes to terminating workers on leave, says Toronto-area employment lawyer Brittany Taylor.

“The biggest mistake employers make is not documenting their thought process. They may be downsizing for the right reasons and they have actually gone through the exercise of considering why they chose one person over another, but they haven’t documented it properly and they don’t have any evidence of the process that they went through,” says Taylor, senior associate at Rudner Law. “It’s a mistake to think there isn’t a need for record-keeping.”

She tells LegalMattersCanada.ca that there is nothing preventing an employer from terminating a worker on leave if the reasons meet labour and human rights code provisions.

Avoid rights violations

“Employers have to understand that if even a very small part of the reason for the dismissal is associated with the protected grounds under the Ontario Human Rights Code, that’s going to constitute discrimination,” Taylor says. “From an evidentiary perspective, an employer has to ensure that there is no indication, no possibility of violating the Code. They really have to do a deep dive of their own motivations for what’s happening.”

She says the Code does not require a company to give “preferential treatment to someone on leave.”

“However, what it requires is that you ensure you are making a decision for reasons that are unconnected to the leave itself,” Taylor says.  “It might make sense to the employer. They can say they are doing a restructuring and that they’re not trying to target anybody, but there still may be a question raised as to how they choose a certain person. And if even part of the reason is ‘Well, this person has been on leave for the past 12 months whereas this other worker has never taken a sick day.’ that would be an example of the sick leave influencing your decision.

“A human rights tribunal or the court is going to want to see your homework if there is any question of discrimination. They are going to want to see the reasons behind that decision.”

She says explaining that a worker on leave was chosen for termination because it would have left the company short-staffed is not acceptable either.

“One of the questions the court is going to have is, ‘Why couldn’t you bring someone in temporarily rather than having that being the only reason you are picking that person?’” Taylor says.

Keep careful track

No matter how well thought out the reason, an employer should always keep “very careful track” of what went into the decision-making process, she explains.

“The number one thing is to document your process. Pull out a pen and paper or note-taking software, something that is going to allow you to keep a record and follow it down the line to the final resolution,” Taylor says.

She says having a hard copy of the reasons for terminating an employee is much better than relying on memory.

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“The reality is if a complaint is filed or an action is commenced it can be years before you are actually on the witness stand giving that evidence, and you may not recollect what your thought process was at that time,” Taylor says. “If there are any other witnesses who participated in the decision-making process, they may not recollect how things happened either.

“Try to remember something you did four months ago. It’s very difficult to expect that of yourself or anyone else,” she adds.

Consider your actions

Once a decision has been made and everything has been carefully documented, “consider how you carry out the dismissal itself,” Taylor says.

“Just like any other dismissal an employer wants to make sure they are acting in good faith, that they are being compassionate, and not being unnecessarily harsh or cruel,” she says.

Reaching out to a person on leave who is being terminated is also a good idea, Taylor advises.

“They may not be able to come in for an in-person meeting but a phone call makes sense rather than just a letter in the mail,” she says.  “Give a little bit more of a human touch.”

In certain circumstances where the employee on a leave has a defined end date, Taylor says she might also suggest waiting until the leave is over to make the termination final.

“For example, if they are on parental leave or if benefits are affected,” says Taylor. “It’s something every employer should consider.”

In the end, she says it all comes down to making an informed decision and keeping a thorough record.

“Basically, you are papering your file,” Taylor says. “You are creating an evidentiary record that is going to be helpful in the event that there is any pushback from an employee. That goes for a lot of decisions that are made in the employment context. Create your files for every decision you make.”