…is where I was yesterday, returning from vacation. As I was flying, I had the opportunity to catch up on some films that I hadn’t seen, including the Academy Award nominated film, “Up in the Air”. For those of you not months behind in your film watching like me, you will know this is the movie starring George Clooney as a “terminator for hire”. His character is retained to fly to companies around the globe and, on behalf of these companies, to conduct their employee dismissals. The plot thickens when the decision is made to begin to offer this service remotely, dismissing employees over a video screen. Some of the most brilliant performances in the film are not from the Hollywood actors, but from the individuals who receive the news that their employment has come to an end.

Interestingly, I heard somewhere that these were not exactly “performances”, as the individuals who played these roles had actually lost their jobs in the recession. Even though the film didn’t win the Oscar for Best Picture, the emotions portrayed by the dismissed employees were authentic and this certainly resonated for me as I watched the film.

I think that the film can serve as a reminder that, at the heart of every employee dismissal, there is an employee, an individual with responsibilities, aspirations, self-worth, with things they have attached to the job that are dashed when they hear that the job has come to an end. Employment lawyers can help with all of the legal mechanics around the termination process (what severance to provide, what benefits, whether to provide a letter of reference, what it should say, etc.), however, conducting the meeting itself, delivering the news and treating the employee with respect cannot be overlooked. I have seen many good severance packages go unnoticed by employees who feel crushed by the manner in which their dismissal meeting was handled.

Our economy may be recovering, but the need to terminate employees will always exist. We hope that there may be less of this over the years to come and, if so, it is all the more reason to do the ones that need to be done with care and compassion.

Christine Thomlinson

In the last two weeks we have seen a number of new clients who have been offered jobs and want our legal services to review the contracts.

Prior to the market crash in 2008 this was common, but after the fall of 2008, the number of these requests fell dramatically and has remained low.

The recent increase in the number of new contract reviews suggests that the market may be recovering and that hiring is starting to return. Unfortunately, we are also seeing a number of terminations, which remained high throughout February. This suggests that the marketplace may still be in transition.

While we start to move from recession to recovery, employers and employees should remain mindful that a good employment contract is often the best way to avoid disputes during the relationship and/or when it ends.

Certainly when someone is hired, we don’t want to talk about what would happen if things don’t work out. However, that approach only postpones what could be a litigious ending. Employers and employees should agree on what occurs on termination before that event occurs. This includes not only outlining what notice is owed to the employee if he/she is terminated, but also how much notice prior to resignation the employer needs should the employee choose to depart.

James Heeney

The passing of December 31 causes many of us to consider resolutions for the New Year. What will we do differently? How will we behave better? What will change?

As employment lawyers, if we could suggest our top 5 resolutions for employers and employees for 2010, they would be:

1. Prepare written employment contracts for every employment relationship.
The good news is that we’re beginning to see people being hired again. As lawyers, we will always tell you that the way to enhance certainty in the relationship is to ensure that everything that was discussed at the beginning finds its way onto paper.

2. When writing those employment contracts, think about post-employment restrictions.
Both employers and employees should think about whether there is a need for restrictions on what an employee does (competes/solicits) after the employment relationship ends. Now is the time to set this out – not later.

3. Continue to exercise care in the termination process.
For the most part, companies seemed mindful of engaging in sensitive terminations throughout the 2009 recession. We encourage the continuation of this practice even if the number of terminations drops in 2010.

4. Pay particular attention to issues of harassment and bullying in the workplace.
Pending legislative changes in Ontario mean that employers need to be addressing bullying and violence in the workplace. Residual stress in the workplace caused by the fallout of the recession may also mean a rise in this type of behaviour.

5. Be aware of changes to the Ontario litigation system.
Changes which come into effect on January 1, 2010 are hoped to bring better access to justice and a quicker resolution of employment matters for all.

From all of us here at RT LLP, we wish everyone a very prosperous and happy new year!

Christine M. Thomlinson