Dear Working Wise:

I have a problem employee. She is rude to my customers, she doesn’t follow the checklist of tasks that must be done every day, she plays the VLT machines instead of serving customers and she calls in sick a lot, but only on the weekends. Is this enough to fire her for “just cause” and not pay severance? Signed, Bothered Bar-owner

Dear Bothered:

Employees have the right to quit and employers have the right to terminate employees.

But, these rights come with responsibilities. The most important one is providing adequate notice.

The length of notice depends on how long the employee has worked for you. In Alberta, the minimum notice required is: one-week’s notice for between three months and two years of service. Employees with two to four years of service are entitled to a minimum of two- weeks notice.

The notice period continues to increase with length of service. For a complete list of notice periods, visit www.employment.alberta.ca/es and click on the Termination of Employment and Temporary Layoff fact sheet.

You can choose to give termination pay in lieu of the notice period. Or a combination of written notice and pay is also acceptable. The employer must pay all wages, overtime, general holiday pay and vacation pay owed to the employee within three days following termination of employment.

There are a number of circumstances when an employer does not have to give notice or termination pay. These are circumstances of “just cause”. Examples include: willful misconduct, like theft or deliberately causing damage to the business; disobedience, like failure to comply with company policy; and deliberate neglect of duty, like not showing up or leaving without permission.

All of these circumstances must be shown to be not condoned by the employer. When an employer terminates someone for “just cause”, they need to have adequate documentation to back up the decision.

Documentation can include things like: details of meetings with the employee, copies of e-mails, letters of reprimand, or time sheets showing missed hours. It should also show a record that these issues were discussed with the employee and the employee is aware of the employer’s concerns.

When an employee is terminated for just cause, the employer still must pay all wages, overtime, general holiday pay and vacation pay owed to the employee within 10 days of termination.

Unfortunately, I can not give you a definitive answer to your question. Employers who terminate employees for cause risk paying expensive wrongful dismissal cases if they lack adequate proof.

A lot depends on how serious the misconduct has been, how many times it has happened and how well you’ve documented it.

To explore how strong your case is for just cause, you should seek legal advice. The Law Society of Alberta offers a free lawyer search service at: www.lawsocietyalberta.com.

For more information on employment standards related to Termination of Employment, visit www.employment.alberta.ca/es or call the toll-free Alberta Employment Standards phone line at 1-877-427-3731.

Do you have a work-related question? Send your questions to Working Wise, at charles.strachey@gov.ab.ca. Charles Strachey is a regional manager with Alberta Employment and Immigration. This column is provided for general information.

Dear Working Wise:

What information can employers safely divulge about past employees if they get a call for a reference? I've heard different things about liability that have made me shy away from giving anything more than the most basic information. Signed, Afraid to Refer

Dear Afraid:

There are two separate issues regarding employee references. One concerns the privacy of the employee and the other is fear of litigation.

In Alberta, the Personal Information Protection Act (PIPA) protects privacy in the private sector, including the collection, use and disclosure of personal information.

An organization may collect, use and disclose personal employee information for reasonable purposes related to managing or recruiting personnel, including releasing reference information to another employer. The key is to ensure that the information is strictly limited to the work relationship.

In one case, a clinic employee disclosed to a prospective employer that the former employee "did a lot of complaining about her co-workers" and "because of her cancer she couldn't handle the work."

It was determined that the first comment did not breach PIPA because it is reasonable performance-related information. The second comment breached legislation, because it was "personal employee information".

The clinic actually had guidelines for giving references, but the employee who gave the reference failed to follow the guidelines.

Employees have successfully sued their former employers for providing bad references and some employers have even tried to sue past employers for providing glowing recommendations for mediocre employees.

In response, some employers have instructed their staff to only provide basic information, like, “Bob Smith worked for us from May, 2001 until August, 2007, as a marketing representative.”

This is likely the safest answer, but it’s not likely to help Bob get that next job. Potential employers might wonder if Bob’s performance was not up to snuff.

So, in the spirit of trying not to get sued, I am providing the following tips for general information only—consult your lawyer for legal advice.

Tip #1 — Check if your organization has a job-reference policy. If so, follow the policy. If not, you might want to create one or suggest one that specifies what information should be provided, if you need verbal or written permission from the employee, and who is authorized to provide references. Every employee should be aware of the policy and, ideally, every employee who gives references should be trained to give appropriate and legal references with confidence.

Tip #2 — Talk to the employee and get their consent before you provide the reference. Be honest with the employee about the kind of reference you will provide. They may decide not to use you if you plan to give a mixed reference.

Tip #3 — Be honest, accurate, and specific when you give the reference and stick to work-related information only. Try to give specific examples to back up your statements. Avoid characterizing the employee’s personality or sharing your opinions on their personal life. Don’t speculate, share suspicions, or provide information “off the record”. Note who called, what they asked and what you said just in case anyone asks.

Tip #4 — Do not divulge personal information that could be used to discriminate against a job applicant, including: race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status and sexual orientation. The Alberta Human Rights Act prohibits discrimination on these grounds. For more information, visit the Alberta Human Rights Commission website at www.albertahumanrights.ab.ca.

All managers want to see their past hires succeed. They feel a sense of pride that they were able to help the employee in a small way in their career path. Providing a reference is one way to do that.

For more tips on giving references, check out the How to Give a Reference tipsheet on the Alberta Learning Information Service (ALIS) website at www.alis.alberta.ca.

For more information about PIPA, visit www.pipa.gov.ab.ca and check out information sheet #5 on Personal Employee Information.

Do you have a work-related question? Send your questions to Working Wise, at charles.strachey@gov.ab.ca. Charles Strachey is a regional manager with Alberta Employment and Immigration. This column is provided for general information.