Ending an employment relationship can be a difficult, but sometimes a necessary step for either an employee or an employer. The end to an employment relationship can allow both the employee and employer to move forward, especially if the conclusion of the relationship occurs in an appropriate manner and for an appropriate reason. With that in mind, here are three key considerations when preparing to terminate an employee, or responding to being terminated:
Is there cause for termination?
While there is typically a reason or cause for terminating an employee, in order for there to be just cause for termination, the employee must engage in conduct that causes “a break down in the employment relationship.” Examples of employee behaviour that may allow for an employer to summarily dismiss an employee include: workplace harassment, breach of fiduciary duty, and continued and serious substandard performance.
The existence, or lack thereof, of just cause will determine whether the employer is required to provide the employee with advanced notice of termination. If an employer has just cause for terminating an employee, an employer does not have to provide an employee with a period of notice prior to termination or pay in lieu thereof. If, however, an employer does not have just cause to terminate the employee, an employer has to provide notice of the termination or pay in lieu of that notice.
To rely on just cause, an employer needs to show an employee actually did the conduct the employee is being terminated for. Furthermore, an employee’s conduct should be viewed contextually to determine whether termination is a proportionate response to the conduct, or whether a response short of termination may adequately address the employee’s conduct.
What is the minimum notice period?
If an employee is being terminated without cause, employment standards legislation mandates a minimum notice period be provided to the employee. The statutorily prescribed minimum notice periods are based on ranges of years of service, and vary from jurisdiction to jurisdiction. For most employers in Prince Edward Island the applicable legislation is the Employment Standards Act, and the remainder of employers are governed by federal legislation.
The applicable legislation contains merely the minimum notice period, or pay in lieu thereof. An employee may be entitled to more than the minimum notice period depending on a variety of factors, including: their age, length of service, nature of their position, and availability of similar positions, or whether an employment contract exists between the employer and employee. Both employers and employees should keep these factors in mind when offering or accepting pay in lieu of notice, as the case may be.
Does the employee have a contract?
If an employer and employee have entered into an employment contract, and the contract deals with termination, then the employment contract will usually govern the manner in which termination is to occur. An employment contract may outline the length of notice, manner in which notice is to be provided, along with other aspects of the termination, such as provisions governing confidentiality, non-competition, and return of company property.
An employer should review the employment contract in detail prior to terminating the employee to ensure it is abiding by its obligations within the contract. Likewise, employees also have obligations pursuant to employment contracts and should review the contracts to ensure they are discharging their obligations, and to ensure termination is proceeding in the appropriate manner.
If you have a question or concern regarding just cause, minimum notice periods, employment contracts, or any other termination related matter, please contact one of Key Murray Law’s Employment Law lawyers who will happily discuss your matter with you.
Legal information appearing in this article and elsewhere on Key Murray Law’s website is intended for informational purposes only and is not intended to substitute for or replace any legal or other professional advice. If you have specific concerns or a situation in which you require legal advice, you should consult directly with one of our lawyers.