In this blog, I will be talking about some of the things that dentists should think about when hiring dentist associates:
- Avoid Discrimination Hiring Practices
- Beware of Probationary Employment Terms
- Put your Associate Agreement in WRITING
Avoid Discrimination Hiring Practices
When hiring an associate, a employer will ask for several things such as:
- Immigration status;
- Reference Checks; and
- Criminal Record.
What many employers may not realize is that they are not allowed to ask certain questions or make decisions that violate the Human Rights Code. For example, an employer cannot ask a potential associate if they have been convicted of a crime for which they have received a pardon. Nor can an employer refuse to hire someone on the basis of their race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
Beware of Probationary Employment Terms
An employer may want to hire an associate employee for a probationary period to ―test the waters. Probation is not automatic. An associate agreement should clearly state that the first few weeks or months (typically up to 3 months) are probationary. This gives the employer the chance to assess the associate‘s skills, attitude, performance and other relevant characteristics with minimal or relaxed obligations (i.e. statutory or at common law) to keep them on. 3 months is a magical number because the Employment Standards Act, 2000 states that the employer need not pay any MINIMUM NOTICE OR PAYMENT IN LIEU OF NOTICE for EMPLOYEES with less than 3 months service (section 54). Now that takes care of statutory obligations, what about the common law (i.e. judge-made law)? There may still be requirements to give reasonable notice or payment in lieu thereof if the associate employee was terminated without cause (i.e. for not having done anything wrong).
In Segreti v. Orion Communications Inc., 2003 CarswellOnt 1785, the Ontario Superior Court of Justice reiterated the law when it comes to probationary employees:
21 The rights and obligations of a probationary employee and an employer were considered by Madam Justice Epstein in Mison v. Bank of Nova Scotia,  O.J. No. 2068 (Ont. Gen. Div.), where, considering the ―more tenuous employment relationship in such cases, she cited the requirements set forth in Kirby v. Motor Coach Industries Ltd. (1980), 6 Man. R. (2d) 395 (Man. Co. Ct.) [reversed (1981), 10 Man. R. (2d) 36 (Man. C.A.)]:
1. The onus is upon an employer to show that it has “just cause” to discharge even a probationary employee;
2. Just cause may be that the employee is, in the opinion of the employer, unsuitable for a job;
3. The unsuitability which would justify the termination of a probationary employee may go beyond those grounds which might support the discharge of a regular employee and may include such considerations as character, compatibility, as well as ability to meet present and future production standards expected by the employer…
4. Where a probationer has been terminated for unsuitability, the employer‘s judgment and discretion in the matter cannot be questioned,…
5. All of the foregoing is subject to the requirement of the employer showing that the discharge was in the bona fide exercise of the employer‘s discretion and judgment that the employee was not suitable and not for some other reason or improper motive which would not justify a dismissal. [pp. 404-405]
SO…The bottom line is that, even though an employer may terminate an employee within 3 months without being required to give STATUTORY notice or payment in lieu thereof, the employer can ONLY terminate the employee for “Just Cause” to avoid giving reasonable notice or payment in lieu thereof at COMMON LAW. So what constitutes “Just Cause” with respect to terminating probationary associate employees? Well, as seen above, the courts have given employers considerable leeway in terminating employees based on their being unfit for the job.
Put your Associate Agreement in WRITING
To avoid misunderstandings and costly legal disputes, the associate agreement should be put in writing. It will typically deal with things like job responsibilities and duties, compensation and benefits (if any), termination provisions and restrictive covenants. If the associate is an employee, then the Employment Standards Act, 2000 will dictate minimum terms of the associate agreement with respect to minimum wages, hours of work and overtime, statutory holidays, annual vacation, vacation pay, pregnancy leave, parental leave, bereavement leave and notice periods for termination of employment or lay-off.