As in life, the practitioners in the field of human resources
too often blindly follow the folly of others, to the point it
becomes collective wisdom. The assurance of the crowd creates its
own certitude. Yet, a Monty Python skit I recall, hit the nail on
the head. In it, a drill sergeant was calling out orders to the
troops. While almost all of the soldiers were marching in unison,
one aberrant marched to his own drum. Finally, the sergeant
erupted, yelling: "He is the only one doing it
Following are some common human resource practices that have
little rational foundation:
— The most common disciplinary warning provides,
"Similar future misconduct will result in disciplinary action
up to and including dismissal." Invariably what the
employer means to impart is, if the employee does it again, she or
he will be fired for cause. But the warning actually provides for a
broad panoply of disciplinary responses, with dismissal only one of
the possible options for similar misconduct of the most egregious
Therefore, when the employee commits the same type of
misconduct, the first question for the trier of fact will be
whether this new misconduct is at the extreme end of its type. If
the employee wants to make dismissal for cause the next
disciplinary step, it must clearly state: "Any further
misconduct will result in your dismissal for cause."
— The most common severance formula provides for
continued payment during the period of notice until the employee
obtains another position and then provides the employee with 50% of
The purpose of this is twofold;
a) To provide the employee an incentive to commence work as soon
as they find it; and
b) To emulate what a court would do if they find other work.
With respect to the former, most employees — anxious and
insecure of their prospects — hardly need incentive to find
another job after they are terminated. The hope of a potentially
greater severance encourages few to malinger and no additional
payment is needed to encourage re-employment.
Courts award severance so the employee is paid for their actual
loss during the notice period. When the employee finds work at the
same or higher salary, the severance ends, subject to ensuring they
receive the minimal severance amount in the employment standards
act. If they obtain a job at lower remuneration, the employee
receives the difference only for the balance of the notice
This severance formula pays them as if their new salary is half
of their former one. But in reality, very few employees take
positions at half or less of what they earned before. Most find new
positions at relatively close to their former salaries, or higher.
As a result, in the majority of cases, this severance formula
dramatically overcompensates the employee relative to what a court
Do most employers intend to offer employees far more severance
pay than a court could possibly order? Not in my experience.
— Although there are less of them, too many
employers still hire outside counsel to conduct extensive
investigations into employee misconduct before deciding to
terminate. In most cases, the employee could be dismissed
without cause for a fraction of what they pay the lawyer just to
conduct the investigation.
Worse, if the investigator finds there is no cause, the
severance has to be paid anyway. If they decide there is and the
employee challenges it, the investigator's report cannot be
used as evidence, the investigator becomes a witness and the
employer has to retain new counsel who has to be brought up to
speed and start the case. Even then, there are usually no cost
savings. Most investigations can be conducted in-house without
— Taking their nod from U.S. law and practices,
many Canadian employers refuse to provide references, good or bad,
beyond confirming dates of employment and positions. Their
reason; fear of being sued. But that concern is illusory.
The courts protect employers from lawsuits related to providing
negative damaging references by providing references (and job
evaluations that damage employees' prospects) with
"qualified privilege." The only time an employer can be
successfully sued for libel based on a reference is if the employee
can prove it was provided maliciously, and in bad faith i.e. the
employer did not believe it itself.
That is an almost impossible task because the courts believe it
to be in the public interest for employers to be able to honestly
opine about an employee to potential new employers.
And they are right. There are too few motivational tools in the
employer's armoury. If an employee knows their behaviour
— good and bad — will follow them for the remainder of
their career, they have a tendency to ensure it reflects positively
upon them. And, good employees deserve to have prospective
employers hear that about them.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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