Is this the worst time to fire an employee?

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“When somebody who’s a witness doesn’t even come to testify, the adjudicator usually concludes that there’s a reason why they didn’t come to testify so they impose what’s called an ‘adverse inference,’” explains Miedema.

Adverse inference, he says, is the meaning adjudicators can draw simply from the absence of a particular witness or piece of evidence.

“Basically, it shows that your evidence wouldn’t have been helpful and indicated that the employee’s evidence was correct,” elaborates Miedema.

The OLRB also held that the employee had never seen a "final written warning" despite Safecross claiming to have issued it the day before his termination.

“The final written warning actually hurt the employer's case because it demonstrated that the employer believed, before the employee made the safety complaint, that a warning – not termination – was appropriate discipline,” says Miedema. “As such, it must have been the safety complaint that led to termination.”

Clearly the employer made some poor decisions on the run-up to Le’s termination what if an HR professional really did want to legitimately fire someone who’d recently made a complaint?

“Just don’t fire them the day after,” advises Miedema, “and when you do terminate someone who has filed a complaint of that sort, make sure that you’ve got well-documented and legitimate reasons for terminating the person before you go ahead with it.

“Don’t go ahead with the termination on the basis of flimsy performance concerns that aren’t documented and don’t really hold up to scrutiny,” he warns.

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