Employee Termination: 5 Questions to Ask Yourself
1.Are you claiming that your organization has just cause to terminate the employee?
If so, and you can prove just cause then your organization is generally not required to provide the employee with any notice of termination at common law. Unless the employee willfully misconducted herself, however, your organization may still be required to provide the employee with the minimum employee termination notice he/she is entitled to under employment standards legislation.
If not, you must provide the employee with notice of termination or termination pay in lieu of such notice.
2. Can you provide the employee with working notice of termination?
In the vast majority of cases, employers do not provide notice of termination. In some cases, the reason is because there is a concern about the impact on employee moral. In other cases, there are security concerns if the employee has access to sensitive information on the company computer network.
In some cases, however, working notice is a viable option. For example, this option is sometimes utilized when a business is being sold or closed. It is also used in connection with the termination of professionals like accountants and lawyers.
3. If there is no just cause for termination, has your organization included a termination clause in your standard employment contract?
If so, and this clause provides the employee with at least as much notice as the minimum notice required by statute law then this clause will generally be enforced.
If not, you are generally required to provide “reasonable notice” of termination.
We strongly recommend that every employment contract include a termination clause.
4. Should your organization provide a reference letter and/or outplacement counseling to a terminated employee?
Unless just cause is being alleged, we believe it is generally a good idea to provide a reference letter to a terminated employee.
We suggest deciding whether to offer outplacement counseling on a case-by-case basis. There are a number of factors to take into account when making this decision.
5. Should you require an employee to sign a release before paying out any termination pay?
Usually, we suggest that an employer require an employee sign a release before providing the employee with any termination pay in excess of the employee’s entitlement under any employment contract or the minimum notice requirements set out under employment standards legislation.
If you are thinking of terminating an employee and have any questions, please contact us at [email protected] or call us at 1-888-640-1728 at your convenience.
In the recent decision of Andros v Colliers Macaulay Nicolls Inc., the Ontario Court of Appeal (“OCA”) found yet another termination clause to be unenforceable. In this decision, the OCA reaffirmed and clarified various principles surrounding the enforceability of such clauses.
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