Northern Exposure

Getting a Dismissed Employee’s Last Meeting Right

By Donovan Plomp of McCarthy Tetrault
and Karen Sargeant, formerly with McCarthy Tetrault

Spring will soon be upon us, and with it may come the urge to do some “spring cleaning” in the home and the workplace. This might mean ending an employment relationship that isn’t working out.

In Canada, which has no concept of “at will” employment, it’s particularly important that employers handle the delicate issue of termination carefully. Messing it up can increase your liability substantially.

The termination meeting is awkward for everybody. It’s obviously tough on the employee. Facing an employee and telling him that he is dismissed is also difficult and stressful. Emotions can get the better of people. Mistakes get made.

The termination meeting is even more difficult in Canada because in recent years Canadian courts have established the principle that employers have a duty to act fairly and in good faith when dismissing an employee. If an employer fails to do this, a court may extend the period of reasonable notice of termination or pay in lieu of notice to which an employee is entitled. (See Don’t let ‘enhanced’ severance be a surprise during terminations Northern Exposure blog entry.)

What to do
This concept of fairness and good faith in handling a termination is a vague concept that can be confusing for employers. The following are some tips on how employers can meet their duty of good faith and fair dealing when conducting a termination meeting.

  • If at all possible, conduct a face-to-face meeting. Avoid informing the employee of the termination by telephone, e-mail, or courier.
  • Provide an employee with a letter confirming the termination including the employee’s last day of work and a summary of amounts to be paid to the employee.
  • In Canada, employees must be issued a document called a “Record of Employment” upon termination to establish whether they are entitled to government Employment Insurance benefits. The termination letter should confirm that the dismissed employee will be provided with a Record of Employment.
  • Inform employees accurately regarding all entitlements they may have upon termination, including insurance conversion and pension entitlements.
  • Employment standards laws in most provinces in Canada provide for minimum severance upon termination unless the termination is for “just cause.” Don’t ask an employee to sign a release for amounts to which they are entitled under such laws.
  • Have two members of management attend the meeting. One person should take extensive notes of what is said and by whom.
  • Hold the meeting in a private location. Minimize attention from other employees to avoid interruptions and embarrassment to the employee being terminated.
  • Try to avoid conducting the meeting on or near significant events such as birthdays, weddings, graduations, important religious holidays, or vacations.
  • Consider offering outplacement counseling. Consider having outplacement counselors on site to meet with the employee afterwards for difficult terminations or particularly sensitive employees.
  • Provide brief reasons for the termination, but don’t engage in a debate. The decision has been made. Arguments should be avoided.
  • Don’t allege cause for dismissal if you can’t prove it.
  • Keep the meeting short.
  • Keep the meeting professional.
  • Consider whether you really need to escort the employee off your premises. Where practical, allow the terminated employee to remove personal belongings, speak to co-workers, and leave your workplace in the least embarrassing or humiliating way possible.

In conclusion, follow the Golden Rule: Do unto others as you would have them do unto you.