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Giving explanations on termination

If you are not in a union, the law does not require the employer to provide you any reason at all for the termination of your employment.
 
Most termination letters will indicate that you are either being terminated with cause or without cause. If you are being terminated with cause, the employer is taking the position that you have done something so awful that it has the right to terminate your employment without notice…no severance package.
 
If you are being terminated without cause, the employer is obliged to provide you a severance package based on Employment Standards Act minimums and reasonable notice as determined by judge-made case law over the years.
 
It does seem unfair that you can render 20 years of loyal service, be called into an office one day and on your way out the door five minutes later without any explanation.
 
Separate and apart from what the law does and does not require, there are some circumstances where an employer should explain the reasons. If you are terminating somebody for just cause, you should put a detailed explanation in the termination letter of what you think the employee has done that warrants their dismissal without notice. If your explanation is detailed and persuasive, when that employee goes to see an employment lawyer and is quizzed about the allegations you have made, you may avoid getting a letter demanding severance in the first place. If the matter ends up going to court, even though the law doesn’t require it, I don’t think any judge would look kindly upon an employee being terminated without a package with absolutely no explanation.
 
Although an explanation is not required, it can be important as a defensive shield. For instance, if you are terminating somebody coming off a maternity or parental leave or lengthy sick leave, without an explanation, the first thing they will assume is that you are discriminating against them. If your position is that the termination would have happened as a result of business conditions regardless of their absence from work, make your case in detail. Again, without some sort of an explanation, their lawyer will assume that you have violated either the Employment Standards Act maternity leave provisions, the Ontario Human Rights Code or both.  
 
Giving a full explanation as a defensive shield also applies if you are terminating someone with a recent WSIB claim or who has filed a complaint against your company under the Employment Standards Act or the Occupational Health and Safety Act. All of these pieces of legislation have reprisal clauses which make it an offence to treat someone badly as a result of exercising their rights under that legislation. If the reason is completely unrelated, you should make that case clearly.   The termination letter will eventually be examined by the person who is going to decide whether you have to pay a lot of money. If it has absolutely no explanation for the termination but now you have come up with a whole list of reasons, it will look very much like an afterthought and a very unpersuasive one at that.
 
On the other hand, there are many situations in which you should keep your mouth shut. If you are not taking the position there is just cause, going on in the termination letter or the meeting about their deficiencies will only irritate them and make them more eager to hire a lawyer and contest your offer.
 
Finally, if the termination has nothing whatsoever to do with performance, I believe there is an ethical and moral obligation to make that absolutely clear. Go on in the meeting and the termination letter about their strengths and how you are prepared to help them by being a reference in finding new employment. Do everything you can to insure that they are not second-guessing their own performance and self-worth while also dealing with the stress of losing their employment. That’s no guarantee that they won’t challenge your severance offer, it’s just the right thing to do.
 
As published in the Hamilton Spectator, April 15, 2013
If you are not in a union, the law does not require the employer to provide you any reason at all for the termination of your employment.
 
Most termination letters will indicate that you are either being terminated with cause or without cause. If you are being terminated with cause, the employer is taking the position that you have done something so awful that it has the right to terminate your employment without notice…no severance package.
 
If you are being terminated without cause, the employer is obliged to provide you a severance package based on Employment Standards Act minimums and reasonable notice as determined by judge-made case law over the years.
 
It does seem unfair that you can render 20 years of loyal service, be called into an office one day and on your way out the door five minutes later without any explanation.
 
Separate and apart from what the law does and does not require, there are some circumstances where an employer should explain the reasons. If you are terminating somebody for just cause, you should put a detailed explanation in the termination letter of what you think the employee has done that warrants their dismissal without notice. If your explanation is detailed and persuasive, when that employee goes to see an employment lawyer and is quizzed about the allegations you have made, you may avoid getting a letter demanding severance in the first place. If the matter ends up going to court, even though the law doesn’t require it, I don’t think any judge would look kindly upon an employee being terminated without a package with absolutely no explanation.
 
Although an explanation is not required, it can be important as a defensive shield. For instance, if you are terminating somebody coming off a maternity or parental leave or lengthy sick leave, without an explanation, the first thing they will assume is that you are discriminating against them. If your position is that the termination would have happened as a result of business conditions regardless of their absence from work, make your case in detail. Again, without some sort of an explanation, their lawyer will assume that you have violated either the Employment Standards Act maternity leave provisions, the Ontario Human Rights Code or both.  
 
Giving a full explanation as a defensive shield also applies if you are terminating someone with a recent WSIB claim or who has filed a complaint against your company under the Employment Standards Act or the Occupational Health and Safety Act. All of these pieces of legislation have reprisal clauses which make it an offence to treat someone badly as a result of exercising their rights under that legislation. If the reason is completely unrelated, you should make that case clearly.   The termination letter will eventually be examined by the person who is going to decide whether you have to pay a lot of money. If it has absolutely no explanation for the termination but now you have come up with a whole list of reasons, it will look very much like an afterthought and a very unpersuasive one at that.
 
On the other hand, there are many situations in which you should keep your mouth shut. If you are not taking the position there is just cause, going on in the termination letter or the meeting about their deficiencies will only irritate them and make them more eager to hire a lawyer and contest your offer.
 
Finally, if the termination has nothing whatsoever to do with performance, I believe there is an ethical and moral obligation to make that absolutely clear. Go on in the meeting and the termination letter about their strengths and how you are prepared to help them by being a reference in finding new employment. Do everything you can to insure that they are not second-guessing their own performance and self-worth while also dealing with the stress of losing their employment. That’s no guarantee that they won’t challenge your severance offer, it’s just the right thing to do.


Ed Canning is a partner practicing in the Labour & Employment Group at Ross & McBride LLP.

As published in the Hamilton Spectator, April 15, 2013
 

Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com