It happens to the best of employees and has probably happened to someone you know – the dreaded firing or being let-go. While it isn’t uncommon most people don’t know much about their rights or how to handle the situation. In an attempt to educate myself and the readers of this blog, I searched out a professional who has the knowledge, experience and expertise in these exact situations.
While one can’t argue against a without cause dismissal you do have the right to contest what the employer is offering to you in the termination package.
Sumitha Carvery of Carvery Law Firm has almost a decade of experience focusing not only on termination of employment but also pre-employment negotiations, employment contracts and compensation, workplace policies and procedures, problems arising during the employment relationship including workplace harassment, workplace investigations, employee discipline, human rights and wrongful dismissal litigation. She explained the distinction between two types of termination:
With Cause
A termination “with cause” occurs when an incident or a series of incidents causes irreparable harm to the employment relationship. Examples of why an employee may be terminated with cause includes, but is not limited to, harassment, violence in the workplace, illegal activities and of course poor performance. A with cause termination is usually instant and the employer is not obligated to provide any notice or severance to the employee.
Using the example of performance, you may be on the path to a with cause dismissal if you find yourself in a situation where your boss is criticizing your performance in writing, or placing you on a performance improvement plan. Sumitha’s advice for someone in this situation is to document everything, “an employee who receives written criticisms of his/her performance should respond in writing detailing why the employee believes the information is false or inaccurate. Having a written record of responses could inhibit an employer from establishing that it had cause to terminate the employee”.
Sumitha also stresses that in this scenario, your employer should have:
- Communicated clearly what the performance issues are
- Provide some sort of assistance in helping you overcome these performance challenges
- Provide written notice at each stage of the process advising the employee that his/her employment could be terminated with cause if their performance does not improve.
It is recommended that if you find yourself under a Performance Improvement Plan (PIP) at work that you reach out to an employment lawyer to get advice on your exact situation.
Without cause
It is within the employer’s rights to end the employment relationship at any point, for any reason (as long as the basis for doing so is not a Human Rights violation). In this scenario, an employer is obligated to provide appropriate written notice of termination, or pay in lieu of such notice, and severance where applicable.
I don’t think that I can stress enough that each situation is unique and that you should not hesitate to seek legal advice when you start to feel threatened at work or if your employment is terminated.
While one can’t argue against a without cause dismissal you do have the right to contest what the employer is offering to you in the termination package. It has to be one of the most stressful scenarios to be called in to a conference room, on a day when others have been let go, to find your boss and someone from Human Resources. I can only imagine how one’s mind would start racing and everything coming out of their mouths would sound like Charlie Brown’s teacher. That is why it is so important to know what your rights are in advance; to have a plan in case this situation is ever your reality.
“Don’t sign anything at that moment”, says Sumitha. “Tell them you want to seek legal advice first and ask for at least one week, if not two to review the termination package. They should comply to your request, if they have not already offered this time frame.” No matter how generous the offer is you want to have it reviewed by a lawyer to ensure that you are covered for your individual circumstances. Despite your possible optimism it may take longer than you think for you to find a role to replace the salary that you had and a lawyer will review your termination package and assess its appropriateness in light of the applicable Employment Standards legislation, common law practice, your employment contract and other relevant indicia. They will have only your best interest in mind.
I don’t think that I can stress enough that each situation is unique and that you should not hesitate to seek legal advice when you start to feel threatened at work or if your employment is terminated. If you have questions you can reach Sumitha Carvery of Carvery Law Firm at scarvery@carverylaw.com or please post them here in the comments section and we will be sure to post more about this topic!