When can an employee be terminated?
Generally speaking, any employer can terminate any employee, at any time, for any reason. The real question is how much the termination will cost. And, like all absolute statements, there are exceptions.
What are the exceptions?
Employers generally need specific, good reasons to terminate employees in unionized workplaces, or workplaces that are subject to federal unjust dismissal laws (like banks, telecommunications, shipping, etc.). As well, employers are generally prohibited from firing employees for any grounds protected by human rights laws, or in retaliation for making any employment standards-related complaint. In such instances, employees have the legal ability to seek reinstatement with back pay.
If none of the exceptions apply, how much does it cost to terminate an employee?
This is a big question, and it is dependant upon many factors. First, it depends on the reason for termination. Has the employee been terminated for "just cause?" If not, has the employee signed an enforceable employment agreement limiting his or her entitlements upon termination? If the answer to the first two questions is "no", what is a reasonable wrongful dismissal entitlement considering all of the relevant factors, such as the employee's age, length of service, character of employment and chances of re-employment?
An employee who has not been fired for cause and who has not signed an enforceable employment agreement that limits their rights upon termination, has an entitlement to notice of termination (or pay in lieu thereof) in the approximate range of 1 month per year of service. That will leave you with yet another difficult decision to make: do you inform the employee months in advance that they will be terminated, or simply offer the employee pay in lieu of notice? We recommend seeking the advice of a qualified employment lawyer prior to terminating the employee; an experienced lawyer will guide you based upon the specific circumstances of your case, the applicable law, and the factors listed above.
This all sounds too difficult - can we simply wait for the employee to resign?
By all means, you have no requirement to terminate an employee, even if that employee wants to be terminated. However, most employees are keyed into the workplace enough to know when their jobs are on the line. They may incite conflict in the workplace, look for reasons to be upset, or "poison the well" by speaking to other employees. If the workplace is made uncomfortable or difficult for the employee, they may go as far as to claim constructive dismissal. In short, once one or both parties know that the employment is not working, termination may be the best course of action.
What can Hyde HR Law do for my company?
The lawyers at Hyde HR Law are experts in employee terminations. We are not only well-versed in the law of wrongful dismissal; we provide practical advice on handling employee terminations based upon our years of experience in the complex and nuanced strategies surrounding termination of employment. We draft employment contracts that limit employer liability from the outset; we advise clients on best practices when terminating employment; and, if so required, we vigorously defend our employer clients in wrongful dismissal proceedings arising out of termination. Contact us today.