Many of our employer clients are led by sophisticated HR teams and experienced managers who are well-versed in the dos of the termination process: do prepare a termination letter in advance; do consider who should be present in the termination meeting; and do seek advice as to the appropriate length of notice of termination to provide to the employee.

As important as those dos are the don’ts – the latter cannot be taken for granted.  I read a recent decision that highlighted a number of these don’ts, and using it as a reference, I want to share some of the no-nos when it comes to providing employees with notice of termination.

In Armstrong v. Lendon, the plaintiff had worked for the defendant as a legal secretary for twenty-six years. On September 4, 2012, the defendant, a lawyer in Owen Sound, gave the plaintiff verbal notice that he was retiring as of December 31, 2012 and that, as a result, her employment would end at the same time. The defendant gave the plaintiff a “glowing letter of reference,” but did not provide her with any notice or pay in lieu of notice beyond the (just less than) four month working notice period.

In June 2013, the plaintiff commenced an action for wrongful dismissal against the defendant.  In response and for the first time, the defendant alleged that the plaintiff’s performance had started deteriorating in or around 2008; the plaintiff had an “emotional outburst” in July 2012 demanding a bonus and raise, both of which the defendant provided; the plaintiff called in sick during a busy period in August 2012; and following this stressful period, the defendant decided it would be too “unpleasant” to terminate the plaintiff’s employment so, instead, chose to retire.[i]  The plaintiff disputed some of these facts, but acknowledged that she had been off work on several occasions due to “stress” and pneumonia, and had requested a raise, failing which she would leave on two weeks’ notice.

At a summary trial, Justice Sproat found that there had been a wrongful dismissal and that the plaintiff was entitled to twenty-one months’ notice of termination (less the verbal notice provided).  In his decision, Justice Sproat highlighted a number of notice (of termination) no-nos in the facts, from which all employers can take a lesson:

• Don’t write a “glowing reference letter” for an employee if you have genuine concerns about his or her performance. While it may be the nice thing to do (and, in particular, will assist in the employee’s job hunt), if you write a positive reference, your post-termination allegations of poor performance may not be accepted as credible. Justice Sproat went so far as to call the defendant’s letter “seriously false and misleading” given his allegations about the plaintiff’s poor performance.
• Don’t allege cause after-the-fact unless the facts supporting cause truly only came to light after-the-fact.[ii] If there is truly just cause to terminate an employee’s employment in advance of the termination, then you must allege it in writing at the time of termination. Judges often look at such post-termination revelations of just cause as “sour grapes” by the employer following a plaintiff’s claim of wrongful dismissal.
• Don’t plead ignorance of the law. While Justice Sproat might have come down hard on the defendant because he was a lawyer, she swiftly rejected his argument that he was unaware that the plaintiff had a notice entitlement beyond the minimum of eight weeks set out under the Employment Standards Act, 2000. She also said that the fact that long-term employees “have a significant entitlement would be known to any intelligent person who read or watched the news.”

While experienced HR representatives may be able to handle termination situations in their sleep because of their knowledge of the dos, it is worthwhile to occasionally review examples of notice no-nos to reinforce the don’ts.

Jennifer Heath

About the Author: Toronto Employment Lawyer Jennifer Heath is dedicated to improving the health and productivity of her clients’ workplaces. Jennifer advises clients on a wide range of common law, contractual and statutory obligations, including those obligations under the Employment Standards Act, 2000, Labour Relations Act and the Human Rights Code.  Her work also involves representing clients before the Superior Court of Justice, the Small Claims Court, the Human Rights Tribunal and the Ontario Labour Board.

[i] Justice Sproat did not comment on the credibility of this statement, but it is certainly concerning that a person running a business would choose retirement over the possibility of terminating a “problem employee’s” employment.

[ii] See our September 2014 Employers’ Alert for a deeper dive into the concept of after-acquired cause.