Many companies hire their employees with the intention of keeping them as long as possible. However, due to a variety of factors such as changing business needs, interpersonal challenges, under-performance, or, in rare cases, serious misconduct, dismissing employees is an unfortunate reality faced by nearly every company at some point in time.
Although dismissing an employee is often an unpleasant experience, it can be made less so by ensuring that terminations are done in a manner that complies with legal obligations and preserves the dignity and respect to which all employees are entitled. With that in mind, this post serves as a guide for employers to navigate the departure of their employees in the best manner possible.
The first step is to determine whether the employee is being dismissed with cause (a.k.a. “just cause”) or without cause. If you terminate for cause, you are not required to provide any notice or pay in lieu of notice. However, keep in mind that the legal standard for just cause is a high one. It is best practice to consult with a lawyer before proceeding with a just cause termination, as improperly asserting just cause can lead to additional damages in the event of a wrongful dismissal claim. If the termination is without cause, you are required to provide reasonable notice to the employee or pay in lieu. The amount of notice required will depend on the specific terms of the employment contract. However, the absolute minimum required notice is outlined in the Alberta Employment Standards Code:
|Length of Employment||Notice Period|
|90 days – 2 years||1 week|
|2 – 4 years||2 weeks|
|4 – 6 years||4 weeks|
|6 – 8 years||5 weeks|
|8 – 10 years||6 weeks|
|10+ years||8 weeks|
Keep in mind the employee may be entitled to more than the above depending on the terms of the employment agreement. Again, it is best practice to consult a lawyer in order to determine a severance offer that is fair and reasonable in the circumstances. Extending a fair severance offer will minimize the possibility of a lawsuit.
Day of Termination
Prior to informing the employee, you should prepare a written termination letter, and a severance offer letter (if applicable). Review the letters to ensure all information is accurate and properly reflects what the company intends to do. At a minimum, the termination letter should state the reason(s) for termination, the amount of notice being provided, and information about final pay, benefits, their Record of Employment, etc.
Try to avoid poor timing. Take care not to conduct the termination close to a significant event, such as the employee’s birthday, the birth of their child, or the death of a family member. This can be viewed as unduly insensitive, even if the termination itself is justifiable.
If possible, wait until the end of the business day or the end of the employee’s shift to inform the employee they are being dismissed. It is best practice if the employee is not forced to be in the presence of their colleagues while gathering their belongings and leaving the workplace.
Face-to-face meetings are preferable to any other form of communication. You should ask to speak with the employee in a private location, with one other person present to observe the meeting and take detailed notes (ideally a HR representative). Terminations should never be conducted in front of other employees or within earshot. This will be viewed as needlessly embarrassing and insulting to the dignity of that employee.
The meeting should be kept brief and direct, but not to the point of coming across as brash or rude. Do not delay unnecessarily and do not equivocate—inform the employee in clear language that they are being dismissed. If the employee becomes upset or angry, it is important not to get drawn into an argument. Re-state the reasons for the termination and offer to have another conversation on a later date. Provide the employee with a hard copy of the written termination letter and any other documents.
If you are offering severance in exchange for a signed release, do not have the employee sign immediately. This may later give the impression they were pressured or they did not understand what they were signing. Leave the offer open for a period of at least 1 week and advise the employee to seek independent legal advice before deciding whether to sign.
You should inform all staff that the employee will no longer be with the company. Keep the message positive—do not include anything about the reasons for dismissal, particularly if it was for cause. The communication should simply state that you wish the employee all the best in the future and provide a contact for any questions.
If the termination includes a severance package offer and the employee decides to accept, ensure that a legal release is signed and copies are provided to both parties.
We understand that dismissing employees is often an emotional and difficult undertaking. Our experience shows us where things can go wrong—that is why we can provide advice and guidance on what is needed to comply with your legal obligations and maintain respect and dignity for all involved. If you need assistance navigating this process, please contact our team of employment lawyers today.