Workplace Law: About to be fired? Read this

Just a quick repost of some legal advice from occasional National Post columnist Howard Levitt, counsel to Lang Michener LLP and author of The Law of Dismissal for Human Resources Professionals.

Financial Post – Workplace Law: About to be fired? Read this

These days, when the employee-employer relationship goes sour, the employee knows it. Most companies follow standard protocols for warning employees if they don’t shape up they will be fired. Employees should be careful how they deal with such situations. Here are a few things to heed:

Don’t demand finality. When you are told you have no future with the company, the instinct is to demand resolution and request specifics, including your last day of employment. That is short-sighted. Dismissals must be, as the courts put it, “specified, definite and unequivocal.” It’s in your interest to delay the day of reckoning. The severance clock does not start ticking until you are given a termination date.

Don’t defame your employer, manager or co-workers. It’s imperative you do nothing that provides your employer with an opportunity to fire you for cause and pay no severance. No matter how tempting revenge is, this is when you are most reliant on your employer’s goodwill and generosity regarding severance and references.

Don’t resign to avoid having a “firing” on your record. Ironically if you resign without another job, no employer will believe you were not fired. More significantly, while resigning because the employer demands it is treated by the courts as a dismissal, resigning to avoid the stigma is not.

Don’t sign a release without both legal advice and serious consideration as to your likely length of unemployment.

Don’t lie when questioned. If your employer questions you about conduct that might lead to dismissal and you are caught lying, you create cause for dismissal. I have won many cases for clients, not because of an employees actions but rather because, when asked about it, the employee lied;

Don’t hold your employer’s property as “ransom” against your demands. With most judges, employees are seen as David to the employer’s Goliath. That is a sympathy that should not be squandered, by stealing or refusing to return your employer’s property.

Do Request a letter of reference. Refusing to provide a deserved reference can lead to your employer paying additional damages.

Do ask why you are being dismissed. An employer’s refusal to inform you as to why you are being fired also can lead to additional damages;

Do ask what support the employer will provide while you are unemployed. This often elicits additional assistance;

Do raise any illegal reasons you may think you are being fired for, such as resisting sexual overtures of a manager at the time of dismissal. If you raise it for the first time, only after being dismissed, you will have credibility issues and little chance of obtaining additional damages. By raising such issues before you are fired, the employer has an obligation to investigate and deal with your concerns.

Do say as little as possible. You are trapped by what you say in the heat of the moment.


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