The New York Times published an opinion piece recently, provocatively titled ‘The Utter Uselessness of Job Interviews’, written by an assistant professor at the Yale School of Management, Jason Dana. The article bemoans the prevalence of unstructured job interviews as the primary method by which candidates are evaluated and selected for jobs. Mr. Dana’s research found that these typical job interviews that most of us have experienced, which take place in the form of a general discussion with the candidate about their background and experience, are extremely ineffective to the point of being counterproductive as a guide to estimating actual job performance. Mr. Dana suggests a couple of (moderately) preferable alternatives – structured job interviews where each candidate is asked precisely the same questions or using the interview to actually test job-related skills – but ultimately concludes as follows:
“Realistically, unstructured interviews aren’t going away anytime soon. Until then, we should be humble about the likelihood that our impressions will provide a reliable guide to a candidate’s future performance.”
As employment lawyers, we hear these stories from clients all the time. People who were great candidates on paper and at the interview but, after they started, soon revealed themselves to be less than desirable performers. So, from a legal perspective, what should you do? Here are our top 3 tips for employers dealing with non-union employees.
1. Don’t presume the employment is going to work out
All employees should be engaged under a written contract of employment and that contract should expressly deal with termination of the employment without cause at the employer’s initiative. Employees can end the employment at any time, without reason, and usually on very little notice to their employer. It’s called resignation. Employers should do what they can to reserve similar rights to themselves.
2. The common law is not your friend
Absent a contract of employment expressly dealing with termination, the common law allows an employer to terminate an employee’s employment without cause on “reasonable notice”. Sounds fair enough. But, in our experience, what the average court considers to be “reasonable” (which may be up to 24 months for a long serving employee) the average employer considers to be unbelievably excessive (and thus expensive). The good news is that it is easy to avoid the application of this “reasonable notice” concept – just insert a specific period of notice in the employment contract. For example, a clause which says: The Employer can terminate the Employee’s employment at any time by providing 8 weeks’ notice or payment in lieu of notice.
3. Don’t forget employment standards legislation
A termination clause, like the example above, is only useful if it can be enforced. Historically, the courts have taken a very strict approach to measuring termination clauses against the applicable employment standards legislation and have not hesitated to declare void termination clauses found to be inconsistent with legislated minimums. This includes where a hypothetical situation can be imagined in which the termination clause could breach the requirements of the relevant employment standards legislation, even if in the particular circumstances the employer did not breach the legislation (see, for example, Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, especially paras. 60-69).
Since that legislation differs from jurisdiction to jurisdiction and is subject to amendment from time to time (Alberta, for example, is currently in the process of amending its employment standards legislation), this can make it tricky to draft a compliant clause that can stand the test of time. For provincially regulated employers in BC, the relevant employment standards legislation is currently the Employment Standards Act. For federally regulated employers, the situation is even more complex due to the unjust dismissal provisions of the Canada Labour Code which may prohibit without cause terminations of non-managerial employees who have accrued sufficient service. If you have any doubts at all about whether the termination clause your organization uses is compliant, we recommend getting some advice. A small cost now to avoid a much bigger cost later can be a smart investment.
Even with the most thorough interviews, reference checks, and best of intentions, sometimes employment relationships just don’t pan out as hoped. When that occurs, employers who have carefully prepared employment contracts for all their employees that expressly and effectively deal with the ending of the employment relationship are apt to save a lot of time and money in dealing with the situation.