Ten Tips for Avoiding Termination Issues

Ten Tips for Avoiding Termination Issues. These are the biggest mistakes that employers make.

Employers (I am looking at you, CEO and Board Chair!) make some common mistakes that cause them untold but unnecessary grief. Here are the ten biggest ones.

This piece is an abbreviated (and slightly altered for the not-for-profit sector) version of a column by Howard Levitt in the National Post. Mr. Levitt is senior partner of Levitt Sheikh, employment and labour lawyers. He practices employment law and is the author of six books.

So what are some of the common mistakes employers make?

1. Ambiguous warning letters.

“Further misconduct may result in future disciplinary action, up to and including dismissal.” That is not much of a warning if you hope to dismiss an employee for cause the next time they do it. This warning specifies that further infractions may result in no discipline at all. Say what you intend: “Any further incident will result in your dismissal for cause.”

2. Termination niceties.

When employees are terminated in this email age, it is common for them to receive emails and texts from everyone they ever worked with expressing their shock and dismay at their firing and stating how valuable they had been to the company. Of course, many of these messages are entirely disingenuous and boil down to either virtue-signaling or an attempt to show sympathy for the employee's plight. But when it comes to a court case and the employer argues cause for discharge, those letters can be lethal arrows penetrating the heart of the case.

3. Overdocumentation.

Documentation has to be produced in the context of a court case, not all of the good, the bad and the ugly. In too many cases, there is something in the written record which is fatal.

4 Condoning.

When you have cause to fire an employee, pull the trigger. If you wait and keep the employee too long, you will be unable to rely on the “cause.” Cause means that the conduct was irremediable and the employee's employment unsustainable.

5. Alleging cause when there is no real case.

Employers do it hoping either to dissuade the employee from suing or in the vainglorious hope of settling for a reduced amount. When employers plead cause in bad faith, knowing they have none, the courts award additional damages.

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6. False warnings.

Too often “warnings,” are actually reprimands. A warning has actually to warn of future consequences. The employee has to be warned that they will be fired if the misconduct recurs. And the courts have little interest in oral warnings unless the employee admits to receiving it, which they likely won't.

7. Inconsistent administration of policies.

If you have a policy that you want to enforce, enforce it every time. It is an excellent defence for an employee to say, “Jane breached this policy and did not get fired so I believed the company did not view it as a firing offence.”

8. Trying to do the right thing.

This takes many forms. Providing a reference to an employee for whom you wish to assert cause. Not alleging cause when you have it so the employee can collect employment insurance. Providing a wage increase because others received it when you should be building a case for dismissal. Too often, doing the right thing is the wrong thing.

9. Demanding a release.

Sometimes employers will try to make the payment of guaranteed contractual terms conditional upon signing a release. In other words, if you have a contract with a termination provision for 12 months' pay, don't ask for a release unless you offer more than that. Demanding a release for what you were obligated to pay anyway can repudiate your contract, permitting the employee to sue for more.

10. Slow responses.

Sometimes employers fail to provide a record of employment or statutory minimum payment under employment standards legislation on time to a terminated employee. Recent decisions have awarded punitive damages for that. Keep your payroll practices sharp and in place during the termination process.

For the full column, see the Fi­nan­cial Post section of the National Post (National Edition), August 05, 2023. This is of course information, not legal advice.

What are your main “pain points” dealing with termination and dismissal?

What advice would be most helpful to you?
And we always assume that you are asking for a friend!

Get in touch. We’ll address your questions and concerns in an upcoming blog post.

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