The dismissal of an employee is never an easy thing, even at the
best of times, and 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 that can provide a good starting point for
ensuring that relevant matters are considered and for helping
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 the employee's hire. Was the
Review significant changes in relation to the employee's
position, role, salary, location, or other material terms of
employment to determine if the substratum of the employment
relationship has been amended materially and hence the employment
agreement no longer reflects current terms.
Determine the termination date and calculate, if possible, what
is owing to the employee for all accrued remuneration to that date,
including salary, vacation pay, commission, incentives and bonus,
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, and is there a record of those interviews? Has the
individual been given an opportunity to respond and answer to any
issues and allegations?
Compile all relevant codes of conduct or policies applicable to
the termination and ensure that the company has complied with its
own policies. In addition, 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 (a) lack of performance, (b)
progressive warnings related to failure or refusal to maintain
performance at reasonable and objective standards and, (c) the
consequences of failing to do so?
Are there related medical issues that need to be considered and
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 the termination offer be made subject to mitigation or not
subject to mitigation?
Review all employee remuneration and specific terms. Are there
any specific 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
with reference to non-competition provisions?
Determine appropriate timing for the meeting to provide notice
of termination. Consider who should be in attendance at that
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 references?
From an article published originally in Employment Update,
the monthly newsletter of Blaney McMurtry's Employment and
Labour Practice Group.
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.
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