Employer does not have to give reason for termination

Posted on : May 5, 2007

It is an incontrovertible fact that if you are terminated and you are not in a union, your employer does not need to give you a good reason or any reason whatsoever. Although there are some very good justifications for why the law is so, many people find this fact unbelievable.

Here is another fact. Every moment you spend of your life second-guessing yourself and trying to figure out why you were the one that was terminated is a waste of time and energy spent thinking about an employer who isn’t paying you to do it. Why bother?

Employment relationships, in the eyes of the law, are contracts. If the employer terminates the contract for just cause such as some heinous act or willful misconduct, the employer owes nothing except the last pay cheque.

If the contract is terminated without just cause, the employer owes minimum payments under the Employment Standards Act and also pay in lieu of notice which the courts award. There is no in between. Either there is just cause or there is not just cause. An employer cannot argue that while there was not just cause, you were a delinquent employee and should get less. At the other end, you could not argue that you were an above-average employee and should get more than what would normally be awarded as a result of your age, seniority and level of responsibility.

If you end up in a court room and the employer is alleging just cause, the reasons for termination will be an issue at trial. If just cause is not alleged, however, the judge doesn’t care. It is not relevant to the issue of deciding how much pay in lieu of notice you should be awarded.

Terminated employees, however, experience things on a personal level. How can it be that I can dedicate two decades of my life to faithfully serving an employer and they can simply call me into a meeting one Friday afternoon and traumatize me and my family with the words, “We are letting you go” without any explanation? How can this be legal? What did I do to deserve this? Why was I fired and not the other logistics planner who has less years of service?

Go ahead and ask but they don’t have to tell you. Terminated employees who come to see me to have an offer reviewed are often still in a state of shell shock and are dumb-founded as to the reasons  for the  termination or outraged at the petty motivations involved. In either case, their self confidence has taken a significant blow.

Even though, on an intellectual level, they may understand that they were the unfortunate victim of a newly promoted boss who wanted to show that they were an effective manager by cleaning house, on an emotional, heart level they are questioning themselves. Surely they did something to deserve this..

This self doubt is only aggravated by the fact that their employer would not give them any explanation as to the termination. They start making up reasons in their head that may have nothing to do with the truth. They spend long hours going over and over meetings and discussions that may give clues to why they are in the unemployment line.

Engaging in a job search is a huge undertaking that requires every ounce of self confidence an individual can garner. It can be disheartening and intimidating.

Imagine the handicap an individual is working under if they are trying to engage in a job search and at the same time beating themselves up over imagined wrongs they committed that caused them to lose their jobs.

I have no magic answers. I do try to get people in this situation a little bit angry. I point out to them that every moment they spend thinking about this employer that did not appreciate their effort and wondering what they did wrong, is a moment of their life that they are giving away to an employer that doesn’t deserve it. I tell them that the best revenge is to live well and to forget about it. This is easy advice to give but not easy to follow. It takes a lot of work to stop obsessing.

Although there is no legal obligation, I advise employers who feel some moral obligation to provide reasons not to do it in the termination interview. You will only make a bad day for the employee worse. If the employee asks why they are being terminated, the response could be: “The decision to terminate your employment  is final and will not be changed. I am not prepared to discuss the reasons today. If, however, you would like to call me in three or four weeks to receive some constructive feedback, I would be glad to speak to you.”

If the call comes before the release is signed accepting your offer, don’t answer it. Once the release is signed, if they call, as gently as you can tell them what skills they need to improve.  If they start arguing with you or get angry, hang up. You offered constructive feedback, not a debate.

If the decision to terminate a person truly has nothing to do with their own personal performance, make that clear. Go out of your way in the termination interview to tell them what strong skills they have. Tell them you would be happy to act as a reference.

At the time that you are speaking in a termination interview, the employee is usually in shock  and angry. The termination interview, however, is one of the most re-played events in anyone’s life. Later, they will likely appreciate the fact that you reassured them. Remember the more confidence they have, the sooner they will get a job and the less money the employer will have to pay in severance.

As published in The Hamilton Spectator, May 5, 2007. Ed Canning practices labour and employment law representing both employers and employees with Ross & McBride LLP.
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