Completing the Record of Employment Accurately

By Pushor Mitchell LLP
Categories: Blog, Employment Law

I am frequently asked what the R.O.E. should say if the employment has been terminated but the employer is not relying on just cause reasons. This is very often the case when the employee simply doesn’t prove to be a good fit within the organization.

It is important to make sure the R.O.E. accurately indicates the reason for the interruption in employment. In particular, it should not (incorrectly) imply the employee was dismissed for just cause. Employees who are dismissed for just cause reasons are not entitled to receive Employment Insurance (E.I.) benefits.

The key is in understanding that the employer has the discretion to terminate the employment of an employee for reasons which fall short of just cause. Decisions to terminate are made every day for reasons which are perfectly legitimate (and legal) but which do not amount to just cause.

An employee might be terminated because he is not getting along well with co-workers, because she turns out not to have exactly the right skill set, or for an infinite number of other reasons. It is within the employer’s discretion to terminate the employment in those circumstances but it is clear that these lesser sorts of reasons usually will not amount to just cause.

In those instances, the employer should be careful to complete the R.O.E. in a manner which is accurate and which does not leave the mistaken impression that the employee was fired for cause. This is one small way in which the employer can assist the individual’s transition.

The problem is the R.O.E. form really doesn’t provide an obvious way to indicate this situation. The form, in box 16, prompts the employer to enter a code to indicate why the employment was interrupted. The codes provided represent: shortage of work; strike or lockout; return to school; illness or injury; quit; pregnancy/parental; retirement; work sharing; apprentice training; dismissal; leave of absence; and “other”.

There is no code provided for “non-just cause termination”. This leaves some employers thinking they must use the code for “dismissal”. However, the word “dismissal” suggests a just cause scenario. The use of this code may be treated, for E.I. purposes, as indicating the occurrence of serious misconduct on the employee’s part.

So, in an instance when the employer simply wants to part ways with an employee but the circumstances don’t amount to just cause, the employer should use the code for “other”. When that code is used, the form prompts the employer to provide explanatory comments in box 18.

In the comments box, the employer should insert some brief, neutral wording to summarize the reason for the interruption. I usually recommend the employer state something to the effect of “organizational change” (because that’s exactly what it is – the employer has made a decision, not based on any just cause reasons, to alter its organization by terminating this individual’s employment).

If the officer processing the former employee’s E.I. application has questions about the circumstances of the interruption, the employer will be contacted for an explanation. At that time, the employer should be careful to emphasize that the organizational change was one which was made for business reasons which do not amount to just cause. A brief explanation (i.e. to the effect that the person simply wasn’t a good fit) will likely suffice.

Taking a careful approach to filling out the R.O.E. will serve to streamline the E.I. application process for the individual (making it less likely that her application for benefits will be denied). This is one way in which employers can ensure they maintain good relations with their former employees.