OCA case affirms companies must honour employee rights

By AdvocateDaily.com Staff

An appeal court win by a grandmother who sued a multinational corporation for constructive dismissal can provide a number of lessons learned for employers for a couple of reasons, says Toronto employment lawyer Miriam Anbar.

According to the National Post, a judge said the plaintiff, a McDonald’s manager, had been “set up to fail” after she was told she must accept a demotion to a lower position as first assistant or be fired after working 25 years for McDonald’s restaurants in Newfoundland and Ottawa.

The Post said the Ontario Court of Appeal found no reason to alter the Ottawa trial judge’s decision which ordered McDonald’s to pay the 67-year-old woman $104,499.33 for the lack of notice and damages she suffered, plus interest and costs. That’s in addition to the $120,000 that the company that manages the McDonald’s outlet was ordered to pay to cover the woman’s legal costs.

McDonald’s didn’t act in line with their legal obligation, says Anbar, an associate with Rodney Employment Law.

“In this case the employer placed the employee in a no-win situation where it would be virtually impossible for her to succeed in the circumstances. These cases are fact specific and a court will look at all particulars before making a decision.”

The case provides valuable information for any employer wanting to avoid legal action and to also create a productive, engaged workforce, she says.

“The No. 1 takeaway would be to act early on as an employer. If you’re making changes in the workplace and an employee challenges it, or objects to the change, don’t ignore that objection. Don’t give an ultimatum as they did at McDonald’s. That’s never the right route,” Anbar tells AdvocateDaily.com.

“If you invest in positive employee relations — involvement, communication, counselling, and having a different approach to managing employee issues — that will really impact the organization in a positive way,” she says.

Focusing on a coaching culture at work can prevent future problems and reinforce the company’s goals, Anbar says, noting that when instructing employees for performance-related issues, it should be a positive experience and underscore effective behaviour.

“It’s also important to reinforce the company’s values and culture to realign the employee with its overall strategy.”

While Anbar says convincing employers about the necessity of a coaching program can be a hard sell, it’s crucial to tell them about its many benefits.

“With respect to employee morale and the company’s bottom line, it is important for employers to keep in mind that frequent turnover has a negative impact on the business, morale, productivity, and company revenue,” she says.

Recruiting and training a new employee also requires significant time and money, so you want to get it right the first time, Anbar says.

The motto at Rodney Employment Law, whose sister company is HR consulting firm MaxPeople is, “Hire Slow, Fire Fast,” she says.

Anbar advises clients to avoid the panic of just trying to get a “bum in the seat” and make sure the right employee is hired to do the job.

From the start, transparency is necessary, she says.

“In order to avoid wrongful dismissal claims, it is key to have an employment agreement in place that makes the employee’s entitlements clear.”

If, for some reason, it becomes obvious that the employee is not a good fit for the company, then termination should be quick, and hopefully, not too painful for either party, she says.

However, Anbar adds, other avenues should be explored before reaching that conclusion.

“Proactively invest in your employees for genuine purposes. If they’re not aligned with the company’s values and meeting your expectations and it’s something that coaching cannot improve, it’s better to end the relationship there and pay them up and move on,” Anbar says.

In the end, employers and their HR professionals should be trained to deal with employment rights each step of the way to “ensure that employees are treated respectfully, with dignity and care, and that their rights are addressed at all stages of the employment relationship — from hiring to performance management and especially leading up to the termination,” she says.

Recommended Posts