Sep 29, 2023  By John Hyde

Red Flags for HR Professionals - When to Seek Legal Advice Part 1

One of the most important skills that effective HR professionals should possess is the ability to recognize when to seek legal advice before taking steps which could create or substantially increase liability for the Company. This is because some workplace issues are more complicated than others and present more potential liability, such that obtaining legal advice will generally save employers money in the long run.

This article is the first installment in a new series aimed at helping HR professionals recognize when they should seek legal advice. Below are three types of situations that warrant seeking specific legal advice, to avoid common pitfalls, minimize exposures, and safeguard your organization's reputation.  

1. Human Rights and Terminations of Employment

The first red flag is terminating an employee shortly before, during, or after they have taken a protected leave of absence, such as a maternity leave, disability leave, or family caregiving leave.

Terminations of employment in such circumstances can create substantial human rights liability for employers because the timing of the dismissal often leads employees to allege that the protected human rights ground which necessitated the leave (e.g., their sex, disability, or family status) was a factor in their dismissal, such that it was discriminatory. Crucially, the courts have repeatedly found that dismissals occurring close in time to protected leaves establish prima facie discrimination (i.e., presumed discrimination), in which case the burden shifts to the employer to prove that the dismissal had nothing to do with the employee's protected characteristic. Notably, this is often difficult for employers to do, because it is discriminatory if the protected characteristic was even a small contributing factor to dismissal (even if it was not the main factor or the only factor).  

In addition to substantial human rights liability, it is expensive to defend human rights claims, and allegations of discrimination can cause serious damage to an employer's reputation. Consequently, given that the best strategy for minimizing such liability will always vary with the circumstances of each case, HR professionals would be well-advised to seek specific legal advice before dismissing an employee shortly before, during, or after they have taken a protected leave of absence.  

2. Workplace Accommodations

Another high-risk situation is when an employee requests reasonable accommodation or the employer otherwise becomes aware of the employee potentially requiring accommodation. Notably, all Canadian jurisdictions have human rights legislation requiring employers to provide employees with reasonable accommodation for any work-related limitations arising from protected grounds, up to the point of "undue hardship".  

These situations are challenging to deal with because what the duty to accommodate requires an employer to do in any given case can vary widely depending upon the circumstances, and there are many potential pitfalls. For example, many employers are not aware that their duty to accommodate also includes a "duty to inquire". Employers who become aware of circumstances which suggest that an employee may require accommodation should inquire into it, even where the employee has not requested accommodation. For instance, employers can face substantial legal liability if they dismiss an employee for performance problems where those performance problems may be related to a disability without first satisfying their duty to inquire and accommodate.  

Similarly, determining which accommodations would be "reasonable" in the circumstances for a particular employee is a highly fact-specific exercise. The reasonableness of workplace accommodations depends on the specific nature and extent of the employee's work-related limitations, the particular duties and responsibilities of their position, and related factors such as their hours of work. Moreover, whether a particular accommodation would create undue hardship for an employer must be determined contextually based on the range of potential accommodations available, the employer's operational requirements, and any previous attempts to accommodate the employee.  

Consequently, legal expertise, including a knowledge of current legislation and case law, is often necessary to successfully navigate the accommodation process while avoiding human rights liability and the reputational damage that can result from an employee filing a human rights application. 

3. Dismissing Employees for Just Cause

Another red flag situation is where an employer plans on dismissing an employee for cause, which essentially means that the employer is asserting that the employee has engaged in such serious misconduct that they are not legally entitled to any notice of termination or pay in lieu of notice. HR professionals should seek legal advice before dismissing an employee for cause because just cause is very difficult to establish and asserting cause in circumstances where it is not reasonable to do so can create substantial liability.

The courts have referred to dismissal for cause as the "capital punishment of employment law", and a very high standard must be met to establish cause. Moreover, whether there is cause in a particular case depends on all the circumstances. Generally, an employer needs to first engage in progressive discipline before terminating an employee for cause, which involves providing repeated warnings regarding what the employee is doing wrong, why it will not be tolerated, and that future instances of the same type of misconduct may result in dismissal for cause. Nonetheless, the amount of progressive discipline needed to establish cause varies depending on all the circumstances, and a single instance of employee misconduct can establish cause for dismissal where it is sufficiently egregious.  

As a result, HR professionals should seek legal advice before dismissing an employee for cause because there are serious risks associated with asserting cause when it is not reasonable to do so. Namely,  the courts have repeatedly found employers to have breached the common law duty of good faith in the manner of dismissal by making unreasonable allegations of cause, resulting in aggravated and/or punitive damages being awarded against the employer, in addition to wrongful dismissal damages.

The Bottom Line

Please do not hesitate to contact us for expert legal advice the next time you encounter one of the red flags noted above and be sure to subscribe to our newsletter for the next installment in this series.



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