My column in the Financial Post attracts plenty of mail and while some people write to comment on some stance I recently took others write to ask how some more common situations should be handled. From my (e)mailbag here are some of those questions and my answers:
Q A consulting firm is conducting an organizational review and it has become obvious many of us will be dismissed. I suspect that I am on the chopping block or that my position will be dramatically diminished. What can I do to prepare myself and what steps should I be taking now?
A Usually, there is little you can do to prepare. Either you will be offered another position, or not; dismissed, or not; demoted, or not. If your position is reorganized, the question then becomes whether that change is a constructive dismissal.
The short answer is if your salary is not reduced or the change is not objectively humiliating, you must take it or be without recourse. Even if it is a constructive dismissal and you have a right to resign and sue, you still have to ask yourself whether you want to accept the demotion rather than have a good lawsuit but be unemployed.
If you are dismissed, the only question is whether your employer is offering you enough. That same question applies if you are constructively dismissed and are offered severance as an alternative to a demotion.
If the offer of severance is insufficient, then you will have to negotiate and, if necessary, sue for more. If you are offered enough, that is really the end of it, subject to seeing if you can convince them to throw in a little more; which is generally a function of the company's disposition and your personal goodwill.
In any event, I would do nothing now other than prepare your resumé. Discussing the prospect would make it difficult to later argue that the dismissal came as a total surprise; a factor that can increase your severance.
Q I resigned and provided my employer with two months notice. They responded by escorting me out the door and refusing to pay me for the two months. Can I sue for it?
A If you resign and provide notice, the employer must pay you for the period of that notice if they wish you to leave earlier with two exceptions.
One is if you are going to a competitor and have confidential information that could damage your employer. In that event, once you accept the new job, you are in a conflict of interest and the employer can ask you to leave immediately without paying severance. In my view, if you have such confidential information and refuse to say where you are going, when asked, the employer would similarly have the right to ask you to leave immediately and not pay severance.
The other is if the notice you provide is longer than your entitlement if you were fired. For example, if you are entitled to four months wrongful dismissal damages if you are fired and in anticipation you resign and provide your employer with six months notice, your compensation would still be limited to four months if asked to leave immediately. Your right to compensation would be further reduced if you start your new job within the notice period.
Q Should I go to employment standards for quick severance relief when I have been fired?
A Almost never. In some provinces, such as Ontario, filing an employment standards claim for termination and severance pay precludes a civil suit for wrongful dismissal. For most employees, what you are entitled to under provincial employment standards legislation is a fraction of what a court would provide. Employment standards claims are most useful to recover overtime payments.
Q Can I be fired during maternity or disability leave?
A You can, but in either case the leave cannot play a role in your firing. If the entire department is discontinued, the disabled or pregnant employee can be restructured along with anyone else. But the human rights commissions across the country are invariably skeptical and you must proceed with caution. If the court or human rights tribunal considers that the disability/maternity leave is even a slight factor, you could be paying far more than simple wrongful dismissal damages.
Misconceptions abound in this area. A lawyer, who was writing for Metro News, answered this same question in the following way:
"The answer should be no, as reinstatement is required at
the end of the leave. However, due to a loophole in the
legislation, permitting termination only in circumstances unrelated
to the leave, it happens all the time. All an employer must do is
claim there is some form of restructuring, even if it is not true,
and the legislation can be circumvented.
"Can I fire an employee on disability leave? Similar to a parental leave, the answer is technically no, but practically yes. Employees cannot be fired because they are on leave, but employers do so anyway. They just call it something else and they often get away with it."
This is errant nonsense and employers proceeding in this fashion will likely find themselves on the wrong end of a court decision.
In human rights issues, the onus of proof is on the employer to prove the dismissal had nothing whatsoever to do with the protected ground. The very purpose of the human rights regime is to catch employers attempting to disguise discriminatory discharges. In my experience, the Commission's approach is to assume the dismissal is discriminatory unless the employer cogently proves otherwise.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.