In Ontario, the manner of termination can be compensable where it causes the departing employee injury beyond the normal hurt feelings associated with the loss of employment.
This is a cost that is easily avoided by employers.
Unfortunately, terminating someone, particularly a long-term colleague or team member, is emotionally hard for everyone involved.
The mistake that many employers make in the face of these feelings is trying to justify the termination beyond the simple business metrics that led to the moment. This can look like:
- Suggestions that the employee should have known that they would be terminated,
- or that there was near cause for the termination of employment,
- or worse that the employee’s absence from work for protected reasons like parental leave, stress leave, and personal leaves led to the termination
These are the foundation of claims for damages in addition to claims for pay in lieu of notice.
Ironically, many termination letters include these allegations in their preamble which, of course, makes them evidence. That’s not great where the employer’s offer to settle claims is contained in the same letter.
Here are some ways employers can avoid claims for damages and make the discomfort of a termination go as smoothly as possible:
- Keep it simple and short with two people in the room for the employer;
- Write two letters:
- one to end the employment and confirm statutory payments; and
- one to provide any additional pay in lieu of notice in exchange for a release;
- Don’t personalize the termination when it is just business;
- Make arrangements to get the employee home safely after the meeting;
- Don’t terminate on a Friday or a Monday or in proximity to an employee’s vacation days;
- Don’t walk the employee out of the office, or escort them about the office while they gather their things if this is unnecessary; and
- Give the employee a glowing letter of reference at the termination meeting.
If you’re not sure how to proceed, take a moment. Absent cause for the termination (where the termination will either be immediate in the moment or the subject of an investigation in the vast majority of cases), there’s no reason not to pick up the phone and get excellent advice.