Not happy with the performance of your live-in superintendent? In such circumstances can a condominium corporation simply dismiss its superintendent and hire a new employee to immediately move into the unit?
The short answer is no. Before taking any steps to dismiss a live-in superintendent, a condominium Board must consider various factors, including the following, to ensure the lawfulness of its actions.
1. Do the performance deficiencies amount to “just cause” for dismissal enabling termination of the superintendent’s employment without notice or compensation?
Although the courts assess every case on its merits, a judicial finding of “just cause” for dismissal is infrequent, and is generally made only in cases where the employee has committed a very serious transgression, such as fraud. Moreover, if an employer’s allegation of cause is later determined by the courts to be unfounded, the employer has exposure to additional liability for any related harm caused to the employee by a failed assertion of cause.
2. Is there is a health issue that may be underlying the performance deficiencies?
If so, then further medical information should be obtained to determine whether the reasonable accommodation of an identified disability must be made, in compliance with the corporation’s obligations under the Ontario Human Rights Code. Employers who refuse to accommodate disabled employees by, for example, granting the employee a leave of absence to recover from a serious illness, will not be well placed to successfully defend against a human rights application. The damages awarded for a discriminatory firing may be extensive, so proceed with caution whenever there is a suspected health issue.
3. Is there an employment contract in place that is legally binding? Does the contract stipulate the period of notice or compensation in lieu of notice that must be provided at the time of termination and, if so, does the termination clause meet the minimum requirements prescribed under Ontario’s Employment Standards Act?
A contract that does not comply with the Employment Standards Act will not be upheld by the courts. In the absence of a binding written contract, a dismissed superintendent will be entitled to statutory notice of termination of up to 8 weeks, or the equivalent value of the salary, accrued vacation pay, and continued benefits through that period.
The employee may have additional entitlements under the common law to reasonable notice of dismissal or compensation in lieu of reasonable notice. In determining the common law reasonable notice period, courts consider a number of factors including the employee’s age, level of position, length of employment, and any recruitment issues. The corporation’s obligation to compensate is subject to the employee’s obligation to mitigate any loss by securing alternative employment.
4. Can the corporation insist that the superintendent vacate the unit upon dismissal?
Unique to the situation of live-in superintendents is the legislated right of a condominium corporation under the Ontario Residential Tenancies Act to require the live-in superintendent to vacate the unit one week following a termination of employment. Once a decision has been made to terminate the employment of a live-in superintendent, it is usually best to have the residential unit vacated as soon as legally permissible. However, the compensation payable to a dismissed superintendent must include the value of the superintendent’s loss of the live-in residential unit, pro-rated over the statutory and/or common law notice periods, as applicable.
5. How may a condominium corporation best protect itself proactively against liability?
It is recommended that prior to hiring any new superintendent the Board have him/her sign a letter of offer and Employment Agreement containing clauses drafted to limit the corporation’s liability in the event of a termination of employment. To ensure the Agreement’s legally binding effect, new hires must be given the opportunity to seek legal advice before signing, and the document must be signed before the job commences and before any work is performed.