RISK REFERENCE SHEET RISK REFERENCE SHEET

Wrongful

The dismissal (termination) of an employee 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 . 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 (such as defamation, invasion of privacy, intentional infliction of emotional distress, etc.). Note: Coverage for such events may vary between insurers. For example, HIROC will cover only legal costs associated with the defense of such claims.

CASE STUDY 1 COMMON CLAIM THEMES Concerns were brought forward to a healthcare organization regarding the misuse of healthcare organization funds • Absence of and inadequate involving an administrator. An independent external audit agreement with enforceable dismissal was undertaken and the organization administrator was provisions. terminated with cause. The administrator sued the healthcare • Inadequate reference checks. organization and the Board Chair for breach of contract • Inadequate hiring and performance including discrimination based on sexual orientation. Case management processes for regulated and review determined that the administrator revealed his sexual non-regulated staff. orientation after he was terminated from his position and the • Ambiguous policies. matter was dismissed without costs. • Imprecise clauses in letters of offer. • Vague descriptions and CASE STUDY 2 responsibilities. • Indefinite work hours. There was a discussion at multiple senior management and board committee meetings of a healthcare organization • Lack of regularly scheduled and regarding the alleged mismanagement of funds. Concurrently, documented progress reports and the contract of a physician acting in an administrative capacity performance appraisals. was not renewed. The physician later alleged wrongful • Poor documentation of progressive dismissal, defamation, loss of competitive advantage, communication and discipline processes. intentional infliction of mental distress, moral damages and bad faith conduct against the healthcare organization, chief of staff and an acting department chief. Case review determined that there was exposure on the part of the involved parties (including failure to follow internal policies, procedures and by-laws) and a settlement was made. Canadian Case Examples

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MITIGATION STRATEGIES Note: The Mitigation Strategies are general risk management strategies, not a mandatory checklist.

Applicant Screening committee, and/or a decision of a regulatory • Adopt a standardized, fair and transparent hiring body affecting the applicant’s or and performance management review processes registration; for employees that include (but are not limited to): o Has ever been (or has been since last o Obtaining and confirming reference checks review), found liable in any Canadian or from previous employers; international court of competent jurisdiction as a result of a breach of the standard of o Obtaining criminal and credit background care, professional misconduct, etc.; checks; o Has ever been (or has been since last o Verification of (e.g., diplomas, appointment), charged or convicted with a certificates) and driving history (if driving criminal offence in Canada or internationally, is an essential requirement of the position); including the reason; o Proof of identity and eligibility to work in o Has voluntarily or involuntarily relinquished Canada; any professional license, registration or o Current and valid professional license and/ entitlement to practice with no restrictions. or registration (e.g., regulatory body for engineers or lawyers). New Hires • Adopt a standardized process for applicant background checks including: • Ensure new employees sign: o A release form to enable any third party to o An employment agreement including release information related to the applicant; enforceable dismissal provisions, a probationary period, and statement o Standardized criteria for references to rate indicating there are no promises outside the the applicant; agreement that the employee is relying on in o Ensuring all references are personally accepting the position (e.g., compensation contacted for a verbal discussion prior to and benefits); the granting of privileges. o An acknowledgment they have read the • Ensure the hiring and performance management organization’s key policies and standards review processes for regulated health professionals of conduct, and that failure to adhere to the requires the applicant and employee to disclose standards may lead to and/or whether the applicant or employee: dismissal. o Is named (or has been since last review), • Ensure all new employees attend an orientation as a defendant in any civil legal action to the organization and their work areas/ arising from their professional conduct, departments. competence or capacity, including whether • Ensure mandatory is conducted, attended the claim is resolved or a judgment rendered; and documented. o Is currently or has ever been involved in • Implement reminders and monitor and document any regulatory body investigation resulting new employee performance during and at in a referral to a disciplinary or quality

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the conclusion of the probationary period, and o Has been involved in a workplace periodically thereafter. Consider dismissal of investigation in the past six months; employees if they do not have a successful o Has been named in a regulatory body . investigation; o Has been named in civil or criminal litigation; All Employees o Has actual or potential health issues, • Ensure complete and timely documentation of all including pregnancy. issues with the employee and attempts to address • Implement a dismissal checklist to ensure: the employee’s: o The decision aligns with employment laws; o Unprofessional and/or disruptive behavior (including confirming the expectations of o Adherence to any contractual requirements the disruptive practitioner in writing); in employment agreement; o Clinical skills and competency issues (where o The employee is provided with: indicated). – Record of employment; • Implement a formal system of scheduled – Appropriate severance package (if performance reviews for all employees. applicable); • Ensure policies and procedures governing work – Accrued and vacation pay; schedules, including , time off, work from – Dismissal letter, or letter confirming home and use of company equipment (e.g., vehicles and accepting or and IT resources) are applied equally to employees ; in the same or similar . – Any release letter the employee is required to sign in exchange for their Education severance package; • Provide ongoing education to professional staff – Information concerning benefits and administration and leaders (e.g., best practices for ; conducting performance management and peer – All organizational property is reviews, leading teams of professionals and critical returned including: laptops; cell and difficult discussions). phones; memory sticks; confidential data; company credit cards; Dismissals corporate membership cards; business cards; ID cards; company • Adopt a standardized process for managing the vehicle; keys; company uniform; dismissal of employees. outstanding expense vouchers; • Obtain legal advice prior to proceeding with a – Access to the organization’s dismissal if the employee has: computers and remote access are o Lodged a formal complaint in the past six disabled (ideally during the dismissal months; meeting); o Returned from any leave of absence in the – The employee’s email is redirected, past six months; their name is removed from any

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directories and website, and their Monitoring and Measurement voicemail message is changed; • Implement formal strategies to monitor and – is notified; measure the effectiveness of and adherence to performance management and dismissal policy – External plan administrators for policies and practices across all sites and programs and benefits are notified. (e.g., learnings from staff complaints, incidents and claims involving employee dismissals, exit interviews, human resource and employee record chart audits).

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REFERENCES

• HIROC claims files. • ECRI Institute. (2014, January). Hiring and firing. Healthcare Risk Control Risk Analysis, 3, Employment Issues 2. • Employment Professionals Canada. (2014, July). Five things you need to know about background checks. • Employment Standards Act, S.O. 2000, c. 41. • Gallant, D. J., Herber, A. P., & Roderique, H. J. (2011, May 11). Background checks and references –the do’s and don’ts [PowerPoint]. Presented at the Fasken Martineau Institute Labour, Employment and Human Rights Group Seminar. • Honda Canada Inc. v. Keays, [2008] 2 S.C.R. 362, 2008 SCC 39. • Human Resources and Skills Development Canada. (2012). Information on labour standards – Terminations [questions and answers]. • Human Rights Code, R.S.O. 1990, c. H.19. • Ontario Ministry of Labour. (2015, November 20). Termination of employment [guide to Employment Standards Act, 2000]. • Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701.

Date last reviewed: September 2020 Disclaimer/Terms of Use: This is a resource for quality assurance and risk management purposes and is not intended to provide legal or medical advice. Nothing in this document is deemed to articulate any standard or required practice. Rather the goal is to provide information for health care organizations regarding risk and quality issues. The information contained in this resource was deemed accurate at the time of publication, however, practices may change without notice. Please direct questions to [email protected] 5