Employment lawyer Dana Kiefer to speak at upcoming Employment Law Masterclass
Termination clauses in employment contracts have long been a point of contention in employment law. And, with the changing legal landscape, companies must be vigilant in keeping their contracts enforceable – so says employment lawyer Dana Kiefer.
Speaking to HRD, Kiefer – an associate at Lawson Lundell and speaker at HRD’s upcoming Employment Law Masterclass – says that reviewing and renewing contracts shouldn't just be a reactionary measure, but an ongoing process, ideally done with legal counsel.
“The silver lining to any employment-related dispute is that you have an opportunity to look at your policies, your procedures, your contracts, and maybe re-up them,” she explains.
The real challenge is ensuring these clauses remain enforceable over time as legal standards evolve. One of the biggest pitfalls companies face is their reliance on bespoke contract language that may seem appealing but carries significant risks.
“Sometimes we see clients get into trouble where they want something a little more bespoke,” Kiefer notes, explaining that while custom definitions or provisions might initially seem advantageous, they can backfire when the law changes.
Kiefer — who will be speaking at our upcoming Employment Law Masterclass — emphasizes that employment contracts must comply with the minimum standards set out in employment standards legislation.
“You can't contract out of that standard," she says, making it clear that while clauses that explicitly reference the legislative standards may not be entirely "bulletproof," they’re much more likely to stand up over time.
Another common issue arises with employees who have a short tenure. While employers might assume they can quickly terminate short-term employees with minimal risk, the legal realities are far more complicated.
“Employee issues don’t just start at termination," Kiefer adds. Her advice to employers is to focus on relationship and performance management from the outset. Rather than taking a "hire-to-fire" approach, employers should invest in good hiring and performance management practices that could prevent the need for termination altogether.
“Let's try and get ahead of it earlier,” adds Kiefer. “Oftentimes the litigation pieces we see for termination individuals with such a short tenure... they can often be complex.”
And, when it comes to employees with disabilities, the stakes are even higher.
“Approaching and managing any employee with a disability should be done with great care,” Kiefer says.
The first time an employer learns of an employee’s disability should not be at the time of termination. Instead, proper accommodation and support should be in place early in the process. Failure to do so can lead to legal troubles, particularly when human rights legislation is involved.
“The two do get conflated, and people get themselves into trouble,” she explains. By separating the performance issues from the disability accommodation process, employers can mitigate the risk of being accused of discriminatory practices.
Balancing legal requirements with maintaining workforce morale is another area that Kiefer delves into, particularly from her experience representing both employers and employees.
"Terminations are hard, and they're hard for everybody," admits Kiefer. She advocates for open communication and respectful dialogue in the termination process, suggesting that avoiding an acrimonious legal battle is often in the best interest of all involved.
"We don't want to jump into a situation where the lawyers are fighting with the lawyers,” she tells HRD. “People love to be able to manage these matters without the acrimonious nature that litigation brings out in folks. [It’s about] focusing on the relationship where possible and understanding if something isn't a good fit.”
Kiefer recounts a particularly challenging termination she was involved with, which illustrates how a respectful approach can ease what is inherently a difficult process. The case involved a long-standing office administrator who had been with a family business for over 20 years. As the business evolved, the fit was no longer there, but simply handing the employee a termination letter and walking them out was not an option.
"That's a situation that you don’t want to... drop a letter on someone’s desk and walk them out the door," she says. “You want to orchestrate a process whereby you're respecting that person's tenure, acknowledging that we're going to part ways – but still figuring out a way we can do that respectfully and cooperatively, without the need to for things to get ugly.”
Want to upskill your employment law knowledge? Book your place at our upcoming Employment Law Masterclass here.
