Employee handbooks are still the bread and butter of many employment lawyers, but for a different reason. Having been terminated, the employee flips open the handbook and finds the magic words about how the employer is "required" to warn them and give them a chance to fix the problem before termination. When they call and explain this to an attorney, the attorney instructs them to gather all their documentation and bring it in for a review. They then sadly explain that the employee handbook by its terms is not a contract. That will be $500 please.
** In Nova Scotia, special rules apply in some situations where an employee has been employed by the same employer for ten years or more. Check with a lawyer or the for interpretation of the Labour Standards when terminating a person who has been an employee for 10 years or more.
Wrongful dismissal is a legal claim made before the courts about the cause (in the legal sense) or length of notice/payment in lieu of notice given to the employee when s/he was terminated from employment.
After all the facts are gathered, look at how the information on your workplace corresponds with the standards, and with the critical components of an Injury and Illness Prevention Program: management commitment/assignment of responsibilities; safety communications system with employees; system for assuring employee compliance with safe work practices; scheduled inspections/evaluation system; accident investigation; procedures for correcting unsafe/ unhealthy conditions; safety and health training and instruction; recordkeeping and documentation.
An employee may make a claim for constructive dismissal to the courts or, in some jurisdictions, to the employment standards authority. In deciding the merits of the case the courts will determine if the change in the employment relationship was so fundamental that it amounted to a termination of employment and, if so, what compensation is appropriate.
Anything that reduces the totality of the separation is likely to be appreciated by the terminated employee. Depending on the degree of friendship developed over time, a follow-up card or note, or a phone call from time to time may help the former employee through this difficult transition.
Before concluding the interview, the supervisor should offer words of encouragement and confidence in the future career of the affected employee. When it is time to indicate the interview is over, the supervisor can stand and extend his or her hand, and remain standing until the former employee has left the office. [F5]
A: If you’re an at-will employee, your employer is not required to give you any advance notice or warnings before you’re fired. However, it does raise some red flags when employees are fired out of the blue, despite glowing performance reviews. In these cases, it may appear that the employer fired the employee for an illegal reason—which would lead to a wrongful termination claim. For example, if your employer hired a new manager who said he didn’t think women should work in sales, and the manager fires you three days later, you may have a claim that you were illegally discriminated against. You should consult with an employment lawyer if you have any doubts as to why you were fired.
The employee should be listened to in an empathic manner and thanked for sharing his or her perspective, and once again thanked for the qualities and positive contributions brought to the organization. The sincerity, or lack of sincerity of these comments, will be easily felt by the terminated employee.
We’ll take them in turn. Since Sharon was just speaking her mind, was her termination a violation of her right to free speech? The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech." Contrary to another popularly held misconception, the right to free speech only protects you from intrusion by the government, not by individuals or companies. An employer has every right to tell you to shut the hell up. The First Amendment does not prevent a private employer from limiting what you can say. Sorry Sharon, you can say whatever you want, but your employer doesn't have to put up with it.
"Now wait a second," you say, "that is a violation of her First Amendment right to free speech." An employer may not need a reason to fire an employee, but the reason cannot violate public policy. Surely this violates her right to free speech, the most fundamental and sacrosanct of all public policies in America. Not only that, but Sharon was fired for something she was doing on her own time. That can’t possibly be legal, right?
It is not always necessary (or desirable) to terminate an employee immediately and provide pay-in-lieu of notice. A preferable option may be to have an employer provide an employee working notice (i.e. that their employment will end at some future date). The benefit to the employer is that they have an employee actively working for the duration of the notice period; however, employers need to consider on a case by case basis, whether working notice will be appropriate. An employee who is on working notice may not put forth the expected effort as he/she may be more concerned with finding a new job than carrying out his/her duties. Also, employers may want the process to end quickly as they may not want an employee negatively affecting the moral of the workplace.
A: Your former employer can give its honest opinion about you and your time with the company, as long as it is based on statements of fact. If the employer lies about you, or speculates about something you did, you may have a defamation claim against your former employer. For example, your employer can’t say that you were fired for stealing, unless that is a verifiable fact (for example, you were caught on tape taking money from the cash register). Because this can be a tricky line to walk, many employers will only verify titles, dates of employment, and rates of pay in response to a reference request.