The dismissal of an employee is never an easy thing even at the
best of times. It is always best to have some comfort that you have
reviewed and considered all of the issues before you undertake an
employee termination. Below is a checklist which can provide a good
starting point to ensure that relevant matters are considered and
to assist generally with the process of an employee termination.
The checklist can of course be modified and expanded upon for the
employer's particular circumstances.
Review the employee's letter of employment or employment
Review circumstances of employee's hire. Was the employee
Review significant changes in relation to the employee's
position, role, salary, location, or other material terms of
employee to determine if substratum of the employment relationship
has been materially amended and hence, the employment agreement no
longer reflects current terms.
Determine termination date and calculate, if possible, what is
owing to employee for all accrued remuneration to date of
termination, including salary, vacation pay, commission, incentives
and bonus, if any.
Is the termination for "just cause" as a result of
misconduct? If so, is there a sufficient documentary record of past
issues and warnings? Have all of the relevant individuals been
interviewed with a record of those interviews? Has the individual
been given an opportunity to respond and answer to any issues and
Compile all relevant codes of conduct or policies applicable to
the termination and ensure corporate compliance with the
company's own policies and, where applicable, ensure that the
company has evidence that the employee was aware of the
If the termination is for performance reasons, is there
sufficient documentation to establish lack of performance and
progressive warnings related to failure or refusal to maintain
performance at reasonable and objective standards and the
consequences of failing to do so?
Are there related medical issues which need to be considered
Are there other human rights or statutorily protected
employment rights that need to be addressed, for example, return to
work following maternity, parental, WSIB or emergency leaves?
If the termination is not for just cause, what is the period of
notice of termination required by agreement, by statute or implied
by common law?
Will the notice period be worked by the employee, in whole or
part? If payment is to be made in lieu of notice of termination
will remuneration be continued or paid out?
Consideration of statutory and contractual obligation to
continue benefits during notice periods and any conditions or
exceptions to such obligations.
Will termination offer be made subject to mitigation or not
subject to mitigation?
Review all employee remuneration and specific terms. Are there
any specifics requirements related to pensions, RRSPs, LTIPs, stock
Are there any outstanding loans or advances to the
Are there company supplies, documents, confidential
information, computers, keys, FOBs, credit cards, automobiles,
equipment or other property to be returned by employee?
Are there employee obligations post termination, including
solicitation of customers or non-competition?
Are there client or competitor lists that need to be identified
related to non¬competition provisions?
Determine appropriate timing for meeting to provide notice of
termination. Consider who should be in attendance at the
termination meeting. Is any security necessary?
Consider issues relating to employment references and/or
provision of confirmation of employment letter. Who will be
responsible for post-termination employment reference?
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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