Being terminated is a terrifying process. In the words of the former Chief Justice Dickson of the Supreme Court of Canada in 1987,
Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self‑worth and emotional well‑being. 1
Your livelihood, your daily routine, and your plans for the future are all tied up in work. At least some of your self worth or self-identity will vanish when you’re terminated. Questions will be swirling around your head because your employer has just dumped you. “Could I have done anything to avoid this?” “Am I a bad employee?” “Will I be able to find another job?”
Compounding this problem is that you are now in a very vulnerable spot, and your employer knows this. In the words of Justice Iacobucci of the Supreme Court of Canada, “The point at which the employment relationship ruptures is the time when the employee is most vulnerable and hence, most in need of protection.” 2
You know almost nothing, often not even why you lost your job. Unless you have been terminated for just cause, your employer is not required by law to tell you the reason. Your finances are insecure, and the employer can take advantage of this. That is why it is essential to remember the following three tips.
With all the emotional factors and dread of being fired, it can easily lead to bad decisions made by the cortisol pumping through your veins. Cortisol is the ‘flight or fight’ hormone, and being terminated is the modern equivalent of seeing a charging sabre tooth tiger.
It goes without saying that you should not fight your manager or HR representative for the termination. The fight response can also lead to aggressive behaviour that is counterproductive, such as arguing and then “anger signing” or refusing to consider an offer.
Flight is much the same, leading to a person signing anything just to get out of a bad situation, or rushing through the termination meeting. People may not even know they are doing it.
What is less known about is the third part of ‘fight or flight’ which is freeze. Just like a deer in headlights, some people will freeze and become unresponsive and numb. In all cases, it will be harder for the person to remember what happened, and what they may have signed or agreed to. This is a problem because an employee upon being terminated must make sure to:
Get as much information as possible.
When you are being terminated, there are several important pieces of information you need to get. Date of effective termination or last day of work, if you are being terminated for cause, the termination and severance pay being offered, and the terms of that offer.
Often employers will offer the base amount required by law, then add an amount for signing a release agreement surrendering your rights to sue them. This will often be coated in language such as “we graciously will” or “as a reward for your considerable service.” This is a lie.
Under the law of contracts, a valid contract needs consideration. The statutory entitlements are not a consideration as you get them no matter what. They legally have to offer you something for the release to be legally binding. However, that amount does not have to be, and will almost never be the amount you could be entitled to under common law.
These types of employer language can also be seen when an employer alleges cause but does not state what it is. Out of “kindness” or “grace,” the employer will not terminate you for cause but instead will terminate without cause on the Record of Employment. Hence, a person is eligible for Employment Insurance benefits.
Let me put it this way. If I came up to you and said you owe me $50,000, but if you give me your car, I will not ask for the money. I go on to say have proof but will not show it to you. Would you think I have a legitimate claim, or that I am robbing you?
Even if the employer does list cause, and gives you a list, take it to a lawyer. There are a lot of Court decisions about what constitutes cause to terminate without having to pay termination pay or severance. For example, in Attzs v. Saputo Dairy Products Canada G.P., it was found that being caught on video vaping in a dairy plant, despite being illegal, a violation of food safety, and against company policy, was not sufficient to terminate the employee on that basis. 3
Once you have the information, you should:
Speak to a lawyer.
Be honest. If I had told you an employee had been terminated for vaping in a milk and cheese distribution warehouse, after being caught on video then admitting it when questioned about it, would you have thought:
- That makes sense and is justified, or;
- The employee was wrongfully dismissed.
This is why speaking to an employment lawyer in Hamilton is so important.
If you have been terminated or are having an issue at work, we encourage you to contact De Bousquet PC.