Law Times

www.lawtimesnews.com Law TiMes / March 3, 2008 Page 11 T he moment of ter- mination is a tricky threshold for both the employer and soon-to-be-ex- employee, because how it's done and what is said is as important legally as why it's done. Traditionally, says Michael Fitzgibbon at Borden Ladner Gervais LLP, termination let- ters are short and sweet with little more than the basic message. Now, he says, there may be some merit in starting to in- clude more details in the let- ter if termination is for cause, such as a documentation of the events leading to the decision. "I think one of the reasons the letter should have more detailed information is that we have to assume the employee will go off and see a lawyer," says Fitzgibbon. a non-specific letter of termination allows the fired worker to spin their own story to their counsel. and, the let- ter will undoubtedly be scruti- nized in minutia if the matter proceeds to a tribunal or other level of adjudication. "By the time you get a law- yer's letter back, the informa- tion is so dramatically differ- ent from the information your client gave you, you wonder if you are looking at the same situation," Fitzgibbon says. "adding more detail allows the employee's counsel to bet- ter understand what was going on and ask questions." There are some caveats, he says, starting with being ac- curate in the letter and not overstating the issue. also, he adds, each termination should be handled on a case-by-case basis, and that includes the letter's details. Still, he says, detailing the series of events, the actions the company has taken to communicate its concerns to the employee, the programs they have made available to resolve root issues, such as an- ger management, and the piv- otal events which have marked the employee's history leading to the most recent one that prompted the termination has the effect of spelling things out clearly from the outset. It's a somewhat contro- versial approach and not one that allen Craig at Gowling Lafleur Henderson LLP fa- vours, though he recognizes the courts sometimes feel the employer has a duty to share information at termination. "If you decide to share in- formation in writing you have to be careful," says Craig, not- ing a pragmatic approach of sharing less comes with it the risk of being boxed in to only those details should the matter develop further. "arguably, plaintiff 's coun- sel could hold them to it and restrict them to exactly what the employer put in the letter," he says. The standard is simple: a letter which captures the con- versation at the point of termi- nation as a reference, he says, as in "for reasons discussed with you today." "If they do go to a lawyer, then usually at that point they have a clear and open discus- sion with counsel for the em- ployers," says Craig, who spent 10 years in human resources. "Since most lawsuits in ter- minations are resolved before court, it's better for the em- ployer counsel to engage the plaintiff 's counsel to expedite a resolution, rather just wait and say, 'we'll accept service of your claim and see you at trial.'" wording of letters aside, though, both Craig and Fitz- gibbon agree the moment of termination is a critical junc- ture and requires careful han- dling on the part of the em- ployer. "The courts have recognized that the employee being termi- nated is vulnerable at that mo- ment," says Fitzgibbon. "and there seems to be a trend in that courts are taking a close look in the manner em- ployers are treating employees at the time of termination." Employers need to be sensi- tive, because there are highly publicized cases in which pu- nitive damages were awarded as a result of mishandled fir- ings, he says. The merest sniff of subter- fuge can backfire: for example, booking a meeting with the targeted employee who shows up only to discover the attend- ees are not as first suggested — that, instead, there is a man- ager from HR and another manager present. and the stereotypical "walk of shame" escort out of the building is also considered to be over the top and an unnec- essary humiliation and source of embarrassment. "I advise people to treat the employee during a termination as though they were your best friend," says Fitzgibbon. "But it's not a debate or a discus- sion. You're there to convey a decision, so it should be highly professional but it should not be lengthy." From his 10 years of ex- perience in HR, Craig says people react differently when the axe falls and the employ- er's representative has to be prepared to handle any even- tuality with compassion and professionalism. How the termination is handled also varies according to how long the employee has been with the company, but How it's done as important as why it's done you're fired! Should we say anything more? FOCUS Kuretzky Vassos Henderson LLP Kuretzky Vassos Henderson LLP is widely recognized as one of Canada's leading employment and labour law boutiques. We practice at the cutting edge assist- ing a wide spectrum of clients ranging from major corporate employers through to individual plaintiffs. Our practice includes employment contracts, wrong- ful dismissal, collective bargaining, labour board applications, arbitrations, adjudications, employ- ment standards, health & safety, human rights and ADR. To discuss what we can do for you or your client, call Kuretzky Vassos Henderson LLP at (416) 865-0504. 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Presented in two volumes, it clearly analyzes current law and developing trends, suggests potential avenues of attack as well as identifies potential weaknesses in the law. The subject-matter is wide-ranging and addresses issues such as: • wrongful dismissal • fiduciary obligations • tort law and vicarious liability issues • remedies • constitutional issues • occupational health and safety • employment contracts • duty of good faith and fidelity and human rights ORDER YOUR COPY TODAY! Looseleaf & binders (2) • $297 • Supplements invoiced separately (3-4/yr) P/C 0439030000 • Vol. 1 ISBN 0-88804-218-3 • Vol. 2 ISBN 0-88804-362-7 CD-ROM or Internet version available separately • Prices start at $215 LT0403 Ball. S. CEL 2/27/08 9:27 AM Page 1 By iaN HaRVey For Law Times there should be a recognition of the vulnerability of that em- ployee, says Craig. Having an outplacement counsellor nearby to come in after the initial shock is also ad- vantageous, since the terminated employee can be gently shifted towards considering his or her next steps, rather than reflecting on the events leading up to the meeting. LT

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