Job loss is tough, whether you’re the one receiving the bad news or the one delivering it.
As an employer, it’s a reality that sometimes needs to be faced. Terminating a position in a way that’s dignified and protects your own interests is a delicate balance that’s best handled with the help of an employment lawyer.
The small investment towards legal advice before you terminate an employee’s position can save you substantial time and money down the road if the termination goes south.
“An ounce of prevention is worth a pound of cure,” says Todd Andres, partner at Pitblado Law.
Todd’s practice focuses on labour, employment and human rights law. He resolves day-to-day workplace issues, negotiates and drafts agreements, policies and workplace rules, and represents clients at tribunals and courts.
The first thing Todd does when clients call to inquire about terminating an employee’s position is to give them what he calls Employment Law 101.
Part of Employment Law 101 is understanding the difference between the two ways a job can be terminated—just cause or without just cause.
The Supreme Court of Canada defines just cause as misconduct violating an essential condition of the employment contract, or where it reaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer.
“In other words,” Todd says, “the relationship has to be irreparably harmed.”
Just cause is a high threshold to reach, so if it’s a one-time offence it has to be very serious. Violence in the workplace, significant theft, or fraud might constitute a just cause dismissal on the first offence, but just cause can also be used when a series of events have led up to the need for dismissal.
With the latter, it’s in the interest of all involved to use progressive discipline—a term that describes taking steps to correct an employee’s problematic behaviour.
It’s best practice to interview the employee as part of the process, to get all sides of the story before you impose discipline. When going this route, it’s a good idea to bring another person in the room with you to witness the discussion.
“The general rule is two of you, one of them,” Todd says. However, a unionized employee may choose to have their union representative sit in with them.
If the disciplinary interview doesn’t resolve the issue and you want to go ahead with terminating employment, the next step is a meeting to present a termination letter.
If it’s just not working out with an employee, you have to downsize, or you don’t have the paper trail to terminate with just cause, you can look at termination without just cause.
In this case, you’re required to give notice.
You can give working notice—which assumes an employee will work until the end of their employment date, or in lieu of notice—which involves providing an employee with a lump sum payment. That amount varies based on a number of factors, though it usually works out to about two to four weeks of income per year of service.
Sometimes, termination is considered because an employee has a personal issue, such as addiction.
“Addiction has been defined as a disability under the Human Rights Code and that means that it needs to be accommodated,” says Todd. “That doesn’t mean that you’re allowed to come to work under the influence, but it does mean that some of the undesirable behaviours that are often associated with addiction aren’t necessarily going to be considered just cause for termination.”
Last chance agreements take this into consideration, allowing the employee time to recover from personal issues that have impacted their job performance.
Often, employers will choose to terminate employment on a Friday to allow the weekend as a sort of processing period. While the intentions are positive, the outcome might not be.
Many support services are closed on weekends, which can add another blow to an employee who has already taken the emotional and psychological hit of losing their job.
Allowing them access to your company’s Employee Assistance Program (EAP) can go a long way to creating good will, provided their termination is handed down during a time when EAP is open and available.
Continuing down the good will path, should you offer to act as a reference as your former employee embarks on the job hunt? Many employers choose not to for liability reasons.
If you give a positive reference and it’s misleading, you could be on the hook if the new employer hires your former employee based on your word. If you give a negative reference that’s not entirely truthful, you might face a defamation lawsuit.
Employers often choose to take the safe bet, offering letters confirming service instead.
“They say, this employee was with me from date X to date Y,” Todd says. “Here are their duties and we wish them the best in their future endeavours.”