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EMPLOYEE TERMINATION
This month's bulletin deals with the termination of employees.
You might be an employee facing dismissal. Or you might be an employer who, for any number of reasons, is going to have to let someone go. This month's bulletin is for both of you.
Employment Law Versus Labour Law
The term "employment law" refers to non-union situations. If you are a senior excluded employee or if your work place is not unionized, then the term "employment law" applies to you.
But if you are working under a collective agreement, or if you are having a problem with your union as well as your employer, then the term "labour law" applies.
Our firm does only employment law. We do not do labour law.
Services We Offer
Our experience in employment law is extensive. We believe it is important to give objective expert advice. Accordingly, while perhaps a majority of our clients are employees, we also act for employers large and small. Our firm has dealt with many large institutions such as banks, credit unions, resource and manufacturing companies, and various levels of government - as well as small family-owned work places. We have handled cases for senior managers and executives as well as for hourly employees.
We handle every aspect of employment law, from employment contracts and policy statements through to progressive discipline issues, personnel files, constructive and actual dismissal and termination packages.
In addition, for more than 10 years Neil Robertson has given speeches and seminars, ranging from a few minutes to a full day, to lay and professional groups on various aspects of employment law. He welcomes inquiries.
Our firm encourages negotiated resolutions. However, if necessary we can take disputes through any level of court.
When To Get Legal Advice
For employer and employee alike, the best time to get legal advice is before a crisis occurs. Usually, an employer should get legal advice when he thinks he might have to let an employee, or employees, go. An employee should get legal advice as soon as he suspects that a demotion or dismissal may be on the horizon.
Timely and experienced legal advice can save emotional and financial hardship for both sides. Don't delay.
Some Myths And Misconceptions
| 1. | Employees are entitled only to the
notice, or pay in lieu of notice, set out in the Employment
Standards Act.
Wrong! In almost all cases, employees are entitled to far more notice, or pay in lieu of notice, than the notice provisions set out in the Employment Standards Act. The amount of notice (or pay) required depends on a variety of factors. But usually it is many times greater than the minimum standard set out in the Act. |
| 2. | An employer can move an employee into
any position or salary level that the employer wishes.
Sometimes yes, sometimes no. A promotion is usually no problem because both the employee and the employer are happy. But if the employer unilaterally demotes an employee in terms of salary, title, position or benefits (or any combination of these), that employee may have been "constructively dismissed". A constructive dismissal is much the same as an actual dismissal. That is, the employee is entitled to leave the work place and demand compensation - which can be extensive. |
| 3. | Long term employees cannot be
terminated unless they have seriously misbehaved and thereby provided
just cause.
Wrong! Absent discriminatory reasons (gender, race, etc) and assuming there is no specific contractual term to the contrary, an employer can dismiss an employee at any time for any reason. Unless there is just cause, the employee is usually then entitled only to reasonable notice, or pay in lieu of reasonable notice. |
| 4. | If an employee is sick for a lengthy
period, the employer can terminate him and find someone else to fill the
job.
Maybe. Maybe not. Terminating a sick employee can raise all kinds of issues if it is not handled properly. These issues can include damages arising from the employee's loss of long term disability benefits. They can also include human rights issues involving the disabled. This is one of the most difficult areas of employment law. |
| 5. | An employer in financial difficulties
is entitled to terminate employees without reasonable notice or pay in
lieu of reasonable notice.
Wrong! Generally, a financially-troubled employer has the same obligations as any other employer. And in some circumstances, the directors of an employer company may be personally liable to satisfy some of those obligations. This is an area where early legal advice and planning is often essential. |
A Word Of Advice
Employment law is one of the fastest-moving areas of law today. Termination of employment can be a highly emotional event - not only for the employee but for the employer as well.
The employee has certain rights - but also certain obligations. The same can be said for the employer; indeed, employers have to be very careful these days about how they handle such matters as stress in the work place, their comments and language concerning employees, unprovable allegations, and other things.
Our firm can help you understand your rights and obligations. And we can help you find a business-like resolution with minimal unhappiness to all concerned.
TAKE A LOOK AT OUR OTHER BULLETINS !