As a business owner it is important to have a crisp understanding of the types and details that define the Departure of An Employee.
Resignation
When an employee has decided to leave the company for whatever reason.
Contrary to popular belief, there is no law that says an employee must give two weeks of notice. There however can be a resignation term in an employee contract, which specifies the amount of notice that is required. The law does require that the employee provide reasonable notice, with two weeks the norm and harder to replace positions even more.
A contract of employment should specify how much notice is required. Most employers do not want someone to continue working once they provide their notice, but others might want to continue their employment until at least the position is filled. If the employer does not want the employee to stay for the length of notice, then the employee is entitled to be paid for that time. It is always a good idea to have a length of time for resignation required, rather than a minimum, so the employer is not stuck paying a lengthy term of notice.
Termination:
When the employer has made the decision that there is no longer a need for the services of a certain employee for whatever reasons.
If an employer is dismissing for cause, it means that the employee has committed a severe breach of their employment contract or the company’s policies in some way. That could result in issuing an immediate departure with no notice or no pay. This reaction is a rare occurrence.
Also, under dismissing for cause, we have the performance side of it. This means that you have gone through a performance process with the individual and you have highlighted areas in which you feel the individual should improve on and you have the opportunities to improve on these areas and you started the consequences of not improving could be. Then, if they do not improve, and you’ve made the decision that it is time for them to leave the organization and that you’re not going to give them any payoff notice.
A more common scenario is to dismiss the individual with notice for whatever reason as the employee is no longer a good fit for your organization. With this, you give the pay and you follow the employment standard code.
Layoff:
A layoff is due to shortage of work in the company.
When an employee is temporary laid off, it can be for up to 13 weeks in a consecutive 20 week period. If the layoff continues past the 13 weeks then it will be considered a termination and the employee will be entitled to termination pay, starting from the beginning of the layoff period.
There are instances where the layoff can be as long as 35 weeks, depending on certain circumstances. If an employee quits during the layoff the employer is not obligated to pay severance or termination pay but things like vacation pay and other benefits might be owed.
If you are unsure if or how you can lay off or terminate an employee, it is best to check with a Human Resources professional to ensure that you are proceeding in compliance with all employment codes and regulations.
Contact ThryvX to learn more.
How Do I Terminate an Employee?
As an employer it is imperative to do your homework BEFORE you terminate any employee. Having a structured plan to follow during the process reduces the risk a run-in with one or more of the powerful regulatory forces that have real legal teeth:
- Human Rights Code of Canada
- Ministry of Labour Domains: Employment Standards and Occupational Health & Safety Act
- Common Law: If the employee decides to retain legal counsel to sue your company
To create this plan, you should ensure that you have all the proper paperwork in place and have done your homework so that there are no missteps on the day of the termination. Here are some key elements that you should include in your plan:
Plan the Environment
Where should the event take place and where? You should conduct the termination in a space that allows privacy for the person. It’s highly recommended to conduct the termination first thing in the morning, or at the start of the person’s shift. Do NOT terminate a person on a Thursday or Friday (unless their shifts dictate) as it will make it very difficult for them to access professional support networks. Majority of these resources will be closed on weekends i.e.) government employment service offices, doctors, counsellors etc. This may cause extreme stress of the departing employee.
Write a Script
These sorts of situations can be stressful for all involved and a script keeps you on point and, most importantly, helps you to not say too much and possibly get into trouble for a misspeak that violates Employment or Human Rights Codes. Keep to your script and do not allow a gateway into any sort of negotiations with the person. Remember this a business decision, not a dialogue.
Know the Process
The leader should deliver the message to the person, then leave the room to begin collecting the person’s immediate belongings. The HR person should stay behind with the person to review the termination package and what the employer is offering them. Ensure that an additional person is nearby, as these are emotionally charged situations and can escalate quickly.
Allowing them to sign the paperwork right away is a no-no.
A minimum of one work-week time frame is a good one, that way the person cannot claim duress when they signed the paperwork from the employer. The paperwork would include the Notice of Termination (with terms and conditions) and a Release that states the Employer is not in breach of the Human Rights Code, Employment Standards, Operational Health and Safety, WSIB. This then guards against risk # 3 because the employer is thereby released from claims of any wrongdoing, so a lawsuit would be highly unlikely.
Do not let the meeting linger. Have them leave directly after reviewing the paperwork, no goodbyes or scenes in the workplace. Offer them a safe transport home if needed, like a taxi or Uber, but do NOT drive them or have another employee drive them!
Have their personal belongings collected up and delivered to their home and signed for. Remember, people often have personal files on their computers, so those can (if you wish) be put on a flash drive and sent with the other items. Such a scenario is another reason why it is a good idea to dissuade employees from keeping personal files on company computers or servers.
In the case of long-term employees who may have a lot of personal items like, plants, pictures, awards etc. that they may wish to pack up themselves you could offer them to return a few days later at an arranged time outside of regular hours to pack their belongings. This can still quickly escalate to an emotional scene, so it’s a good idea to have a neutral person or a security guard to oversee the packing process.
To finish the process neatly, make sure the person’s final payment is made within 7 days or at the next occurring payroll.
