Wrongful Dismissal

The dismissal (termination) of employees and independent contractors may be subject to both legislation and common law. Wrongful dismissal refers to a situation in which the employee alleges that they were terminated without just cause and / or without a sufficient severance package. Often times, in wrongful dismissal claims, the plaintiff will also seek aggravated, punitive damages, or moral (mental distress) damages, and may claim that the employer has committed one or more torts (such as defamation, invasion of privacy, intentional infliction of emotional distress, etc.). Other allegations include harassment, discrimination and failure to accommodate. 

Expected Outcomes

Embed anti-racism and diversity, equity, inclusion, and belonging (DEIB) into all human health resource strategies, policies, and practices.  

Adopt standardized evidence-based / best practice and legislation complaint:
o        Hiring and performance management practices for regulated health professionals;
o        Background checks for all applicants;
o        Performance reviews for all staff and leaders;
o        Procurement practices for contracted services providers;
o        Employee dismissals practices.

Adopt quality indicators for the organization’s human health resource strategies, policies and practices.

Definitions and Acronyms

• DEIB – diversity, equity, inclusion, and belonging: an approach to organizational and societal change that seeks to create more diverse, equitable, and inclusive environments where everyone feels a sense of belonging (Deloitte, n.d.). It involves actively addressing the systemic and individual barriers that prevent individuals from different backgrounds from fully participating and contributing to society (Schellhardt & James, 2020)

Common Claim Themes and Contributing Factors

Organizational

• Frequently involve claims from aggrieved:
  • Senior executives;
  • Physicians in leadership positions; 
  • Long-term employees.

Legal Consult

• Failure to obtain expert legal consult before:
  • Terminating employment or a contractual relationship:
    • On parental or health-related leave;
    • Alleged to be involved in the misappropriation of funds;
    • Alleged to be involved in workplace harassment or other unacceptable workplace behaviour;
  • Before taking a heavy-handed approach to suspensions and termination of employment or contractual relationship;
  • Not honouring service / employment agreements (e.g., compensation, stipends, agreed to benefits and compensation if the person is terminated);
  • Imposing “new” conditions upon termination not previously agreed to in employment agreements and / or human resource policies (e.g., non-compete provisions, requiring the person to sign a release or penalty of no / delay compensation).

 

Human Resources Practices

• Absence of and / or inadequate employment agreement with enforceable dismissal provisions.
• Vague:
  • Job descriptions and responsibilities;
  • Employment and service agreements.
• Use of unclear and ambiguous language to describe probationary periods negatively impacting their enforceability.
• Ambiguous leave of absence policies.
• Inadequate hiring and performance management processes for regulated and non-regulated staff.
• Imprecise clauses in letters of offer.
• Lack of regularly scheduled and documented progress reports and performance appraisals.
• Inadequate documentation of progressive communication and discipline processes.
• Inadequately conducted performance appraisals and internal investigations / reviews resulting in allegations of harassment, intimidation, and discrimination. 

Mitigation Strategies

Diversity, Equity, Inclusion, Belonging, and Anti-Racism

• Implement strategies to ensure all human health resources strategies, policies, and practices (recruitment, reference checks, parental leaves, retention, performance management, advancement, etc.):
  • Are evidence-informed, fair, equitable, and inclusive from a DEIB and anti-discriminatory perspective;
  • Embed explicit language that the organization prohibits discrimination in recruitment, hiring, etc. (Asare, 2022) (Cox & Lancefield, 2021) (Canada Research Chairs, 2021) (Government of Canada, 2021) (Niagara Region Corporate Strategy and Innovation, 2021) (Jefferies, Tamlyn, Aston, & Tomblin Murphy, 2019) (Morrison, et al., 2021) (Dobson, 2022) (Tomblin-Murphy & Sampalli, 2022).

Screening and Hiring Process 

• Adopt a standardized evidence-based / best practice application process as well as annual performance review for non-regulated staff, care providers, and leaders.
• Adopt a standardized evidence-based / best practice process for applicant background checks that includes (but is not limited to):
  • A release form to enable any third party to release relevant information related to the applicant;
  • Standardized criteria for references to evaluate the applicant;
  • Ensuring all references are personally contacted for a verbal discussion, if possible, or a focused written response to a request for recommendation prior to hire;
  • Criminal record background report (ECRI, 2021).
• Adopt a standardized evidence-based / best practice application process as well as annual performance review for regulated health professionals that requires the applicant / staff member to agree to disclose (but is not limited to) whether the applicant/staff member:
  • Is named (or has been since last review), as a defendant in any civil legal action arising from their professional conduct, competence, or capacity, including whether the claim is resolved or a judgment rendered;
  • Is currently or has ever been involved in any regulatory body investigation resulting in a referral to a disciplinary or quality committee, and / or a decision of a regulatory body affecting the applicant’s licensure or registration;
  • Is currently or has ever been involved in any professional regulatory body investigation resulting in a referral to a disciplinary or fitness to practice committee, and / or a decision of a regulatory body affecting the applicant’s licensure or registration;
  • Has ever been (or has been since last review), found liable for a breach of the standard of care in any Canadian or international court of competent jurisdiction;
  • Has ever been (or has been since last review), charged or convicted with a criminal offence in Canada or internationally, including the nature of offence charged;
  • Has voluntarily or involuntarily relinquished any professional license, registration or entitlement to practice. 

New Hires

• Implement formal strategies to ensure new hires sign:
  • An employment agreement (where required);
  • An acknowledgment they have read the organization’s key policies (code of conduct, privacy, and confidentiality, etc.).
• Involve expert legal counsel in the drafting of employment agreements.
• Implement formal strategies to track and monitor that all new hires attend mandatory orientation and training (where indicated).

Probationary Period

• Adopt legislation compliant best practices for the management of new hires’ probationary period, including (but is not limited to):
  • Ensuring new hires’ performance are monitored and documented during and at the conclusion of the probationary period;
  • Where indicated, dismissing the employee or extending the probation before the probationary period expires; consult with legal action as appropriate.

Performance Management 

• Implement a formal principle-based protocol and strategies to minimize and manage unprofessional, disruptive, and / or discriminatory behaviour by employees, agency staff, and leadership.

Additional Considerations

Examples of elements to address in protocol and strategies to minimize and manage unprofessional, disruptive, and / or discriminatory behaviour:

• Definitions for unprofessional, disruptive, and /  or discriminatory behaviour;
• The reporting procedure (fair and transparent);
• Procedures for those receiving the complaints;
• Description of the review process, informal resolution process (mediation), the investigation process, and appear process;
• Protection of persons against retaliation making complaints about unprofessional, disruptive, and / or discriminatory behaviour; 
• Thresholds for taking disciplinary-related action based on type of infraction and frequency of the behaviour (just culture and progressive approaches to interventions and consequences).

• Adopt a fair, effective, and timely complaint management process for all employees, agency staff, and leadership including tracking and reviewing complaints to identify trends and themes.
• Ensure complete and timely documentation of all attempts to address:
  • Unprofessional, disruptive, or discriminatory behaviour (including confirming the expectations of the disruptive person in writing);
  • Clinical skills and competency issues.

Procurement and Contract Management

• Adopt best practices for hiring contracted and / or agency staff (HIROC, 2023) (HIROC, 2022) (ECRI, 2016).
• Involved expert legal counsel in the drafting of and / or review of a clinical-related purchased service agreements (e.g., nursing and personal support worker agency agreements); avoid “evergreen” clauses that enable the automatic renewal of the service agreement without the parties’ discussion or consent.

Additional Considerations

Examples of elements to address within services agreements for contracted service providers (agency nurses, personal support workers, etc.):

• Requirement that certifications and college registrations are up to date;
• Proof of satisfactory professional liability insurance for services to be provided under contract;
• Evidence that the required occupational health and safety requirements (e.g., vaccinations and immunizations) have been met before services are provided;
• Compliance with any current jurisdictional restrictions (e.g. restrictions regarding working at multiple sites)
• Require that the agency provide evidence of:
  • Clearly defined scope of work (often appearing in the Appendix);
  • Evidence of adequate and appropriate liability insurance for services under contract.

Terminations

• Adopt a standardized best practice and legislation compliant protocol for managing the termination of employment that includes (but is not limited to a) adoption of a termination of employment checklist (HRInsider, n.d.) (ECRI, 2019).

Additional Considerations

Examples of elements to include in dismissal checklists:

• Confirmation that the decision aligns with employment laws and adheres to any contractual requirements in employment agreement;
• The employee is provided with:
  • Record of employment;
  • Appropriate severance package (if applicable);
  • Accrued wages and vacation pay;
  • Dismissal letter, or letter confirming and accepting resignation or retirement;
  • Any release letter the employee is required to sign in exchange for their severance package;
  • Information concerning benefits and pensions;
• All organizational property is returned including: laptops; cell phones; memory sticks; confidential data; company credit cards; corporate membership cards; business cards; ID cards; company vehicle; keys; company uniform; outstanding expense vouchers;
• Access to the organization’s computers and remote access are disabled (ideally during the dismissal meeting);
• The employee’s email is redirected, their name is removed from any directories and website, and their voicemail message is changed; 
• Payroll is notified;
• External plan administrators for pension and benefits are notified.

• Obtain expert legal advice prior to proceeding with a termination of employment if the employee has: 
  • Lodged a formal complaint in the past six months; 
  • Returned from any leave of absence in the past six months;
  • Has been involved in a workplace investigation in the past six months; 
  • Has been named in a regulatory body investigation;
  • Has been named in civil or criminal litigation;
  • Has actual or potential health issues or may require accommodation (ECRI, 2019).

Retention of Records

• Adopt best practices for the retention, storage, and destruction of human resources records (Ontario Hospital Association, 2022).

Team Training and Education

• Implement formal strategies to support and enhance human resource staff, administrators, and leaders’ understanding of:
  • Employment related legislation;
  • Occupational health and safety obligations;
  • Accommodation requirements;
  • Constructive dismissal;
  • Harassment, anti-racism, and DEIB; 
  • Workplace psychological safety; 
  • Best practices for applicant screening and hiring; 
  • Best practices for employee / staff engagement, development, and mental health (ECRI, 2019).

Monitoring and Measurement

• Implement formal strategies to monitor and measure compliance with human health resource strategies, policies, and practices, including (but not limited to) adopting standardized best practice quality indicators (HIROC, 2018).
• Incorporate learning from local, provincial, and national human health resource related reviews, case law, and data into local protocols as well as human resources and leadership education and training.  

References

• Asare, J. G. (2022, 8). 5 Anti-Racist Hiring Practices Every Workplace Should Adopt. Retrieved May 13, 2023, from Forbes: https://www.forbes.com/sites/janicegassam/2022/08/11/5-anti-racist-hiring-practices-every-workplace-should-adopt/?sh=4a8a665e187a
• Canada Research Chairs. (2021, 3). Creating an Equitable, Diverse and Inclusive Research Environment: A Best Practices Guide for Recruitment, Hiring and Retention. Retrieved May 13, 2023, from Government of Canada: https://www.chairs-chaires.gc.ca/program-programme/equity-equite/best_practices-pratiques_examplaires-eng.aspx
• Cox, G., & Lancefield, D. (2021, 5). 5 Strategies to Infuse D&I into Your Organization. Retrieved May 13, 2023, from Harvard Business Review: https://hbr.org/2021/05/5-strategies-to-infuse-di-into-your-organization
• Dobson, L. (2022, 5). 9 strategies for increasing diversity and inclusivity in nursing education. Retrieved May 13, 2023, from Canadian Nurse: https://www.canadian-nurse.com/blogs/cn-content/2022/05/30/9-strategies-for-increasing-diversity-and-inclusiv
• ECRI. (2016, 5). Employing Temporary and Agency Staff. Retrieved May 13, 2023, from Health System Risk Mangement - Guidance: https://www.ecri.org/components/HRC/Pages/Empl13.aspx
• ECRI. (2019, 55). Hiring and Firing. Retrieved May 13, 2023, from Health System Risk Management - Guidance: https://www.ecri.org/components/HRC/Pages/Empl2.aspx
• ECRI. (2021, 2). Criminal Background Checks. Retrieved May 13, 2023, from Health System Risk Management - Guidance: https://www.ecri.org/components/HRC/Pages/Empl2_1.aspx
• Government of Canada. (2021, 6). Best Practices in Equity, Diversity and Inclusion in Research. Retrieved May 13, 2023, from Government of Canada: https://www.sshrc-crsh.gc.ca/funding-financement/nfrf-fnfr/edi-eng.aspx
• HIROC. (2018). Human Resources - Recruitment/Retention. Retrieved May 13, 2023, from https://www.hiroc.com/resources/risk-profiles/human-resources-recruitment-retention
• HIROC. (2022). Agency Staff. Retrieved May 13, 2023, from https://www.hiroc.com/resources/risk-notes/agency-staff
• HIROC. (2023, 5). Contract Review: A Guide for HIROC Subscribers. Retrieved from HIROC: https://www.hiroc.com/system/files/resource/files/2023-05/Contract%20Resource_May%202023%20%28FINAL%29.pdf
• HRInsider. (n.d.). Employee Termination Checklist. Retrieved May 13, 2023, from HRInsider: https://hrinsider.ca/employee-termination-checklist/
• Jefferies, K., Tamlyn, D., Aston, M., & Tomblin Murphy, G. (2019). Promoting visible minority diversity in Canadian nursing. Canadian Journal of Nursing Research, 51(1), 3-5. doi:doi:10.1177/0844562118795812
• Morrison, V., Hauch, R., Perez, E., Bates, M., Sepe, P., & Dans, M. (2021). Diversity, equity, and inclusion in nursing: The pathway to excellence framework alignment. Nursing Administration Quarterly, 45(4), 311-323. doi:doi:10.1097/NAQ.0000000000000494
• Niagara Region Corporate Strategy and Innovation. (2021, 9). Human Resources Best Practices Guidebook: How to Increase Diversity and Inclusion in Recruitment, Hiring, and Promotion. Thorold, Ontario. Retrieved May 13, 2023, from https://niagararegion.ca/about/inclusive-communities/pdf/human-resources-best-practices-guidebook.pdf
• Ontario Hospital Association. (2022). Records Retention Toolkit A Guide to the Maintenance and Disposal of Hospital Records. Retrieved May 13, 2023, from https://www.oha.com/Legislative%20and%20Legal%20Issues%20Documents1/Records%20Retention%20Toolkit,%20September%202022.pdf
• Tomblin-Murphy, G., & Sampalli, T. (2022, 5). Investing in Canada’s Nursing Workforce Post-Pandemic: A Call to Action. Retrieved May 13, 2023, from Royal Society of Canada: https://rsc-src.ca/sites/default/files/Nursing%20PB_EN.pdf