It’s easy and cheap if the employer has legitimate just cause, but there’s a potentially expensive catch
Problematic employees are like a cancer in the workplace. Left unchecked, they can kill morale, destroy productivity and cause talented employees to look elsewhere for a more fulfilling work experience. These are devastating long-term ramifications in any organization.
So why are so many employers reluctant to part ways? Why is it so hard to fire problematic employees?
The simple answer is that it’s not hard. Despite all the legal mechanisms to protect employees, employers have the right to terminate an employment relationship at any time. If the employer wants to part ways, it can do so in a heartbeat. But there’s a catch, a potentially expensive one, and it comes in the form of reasonable notice.
If the employer doesn’t have a legitimate reason (known as “just cause”) to terminate the employee, then it has to give the worker notice or pay in lieu of notice that he is going to lose his job. Much to the chagrin (and confusion) of employers, this is beyond any statutory minimums the employee might be entitled to under employment standards legislation.
How much notice is considered reasonable depends on a number of factors. In Bardal v. Globe and Mail, a 1960 decision, an Ontario court laid out the factors to be considered in determining reasonable notice.
The “Bardal factors,” as they are commonly known, are still heavily relied upon by courts across the country in determining the reasonable notice period when an employer does not have just cause. The court suggested the factors to be considered include:
•age of the employee;
•character of the employment;
•length of service; and
•the availability of similar employment.
In 1997, the Supreme Court of Canada added another factor in determining the reasonable notice period in Wallace v. United Grain Growers. That decision set a precedent allowing courts to extend the notice period for the way the employer handles the dismissal. If it’s callous and mean-spirited in the way it handles the termination, a court has the option of tacking on additional time to the notice period to punish the employer.
But there’s no magic formula for determining reasonable notice, and therefore no sure-fire rule for employers to follow. It’s not uncommon for courts to hand out vastly different awards in cases with similar facts. At one time a “one month for every year of service” rule had some legitimacy, but that notion has been explicitly struck down by the courts.
Since there is no formula, the simple reality is that it’s up to employers to come up with an amount they feel is reasonable. If the employee properly accepts it, and it’s above the minimum in employment standards legislation, then the matter is generally over. Every employee will react differently — sometimes lawyers for employers are surprised a relatively low-ball offer is accepted. Others are left scratching their heads when an overly generous offer is turned down.
The employer will have to weigh its options, considering the cost of fighting a wrongful dismissal suit and the strength of its case, in determining the best route to go if the employer rejects the reasonable notice offer. In some cases, it will be worth anteing up a larger offer. In others, it will be more advantageous for employers to dig in their heels and let a court decide.
But if the employer has just cause to terminate the employment relationship, it can do so without providing the worker any notice whatsoever. But employers must tread carefully as courts have set the bar very high in putting the onus on employers to prove just cause. Many employers have gone into court with what they believed were open-and-shut cases and come out on the losing side. Heat of the moment firings, relying on one incident of insolent behaviour, are usually a recipe for failure in court.
So why is it so expensive to get rid of an employee without just cause? Courts have long recognized the power imbalance between employers and employees. Workers don’t have much leverage and are at the mercy of employers.
Since work is such an important part of an individual’s life, courts have put the onus on employers to behave responsibly when terminating employment. After all, an employer typically has deeper pockets and, as Justice Frank Iacobucci said in Wallace, employees are most vulnerable at the time of termination and that’s when they need protection the most.
So why are so many employers reluctant to part ways? Why is it so hard to fire problematic employees?
The simple answer is that it’s not hard. Despite all the legal mechanisms to protect employees, employers have the right to terminate an employment relationship at any time. If the employer wants to part ways, it can do so in a heartbeat. But there’s a catch, a potentially expensive one, and it comes in the form of reasonable notice.
If the employer doesn’t have a legitimate reason (known as “just cause”) to terminate the employee, then it has to give the worker notice or pay in lieu of notice that he is going to lose his job. Much to the chagrin (and confusion) of employers, this is beyond any statutory minimums the employee might be entitled to under employment standards legislation.
How much notice is considered reasonable depends on a number of factors. In Bardal v. Globe and Mail, a 1960 decision, an Ontario court laid out the factors to be considered in determining reasonable notice.
The “Bardal factors,” as they are commonly known, are still heavily relied upon by courts across the country in determining the reasonable notice period when an employer does not have just cause. The court suggested the factors to be considered include:
•age of the employee;
•character of the employment;
•length of service; and
•the availability of similar employment.
In 1997, the Supreme Court of Canada added another factor in determining the reasonable notice period in Wallace v. United Grain Growers. That decision set a precedent allowing courts to extend the notice period for the way the employer handles the dismissal. If it’s callous and mean-spirited in the way it handles the termination, a court has the option of tacking on additional time to the notice period to punish the employer.
But there’s no magic formula for determining reasonable notice, and therefore no sure-fire rule for employers to follow. It’s not uncommon for courts to hand out vastly different awards in cases with similar facts. At one time a “one month for every year of service” rule had some legitimacy, but that notion has been explicitly struck down by the courts.
Since there is no formula, the simple reality is that it’s up to employers to come up with an amount they feel is reasonable. If the employee properly accepts it, and it’s above the minimum in employment standards legislation, then the matter is generally over. Every employee will react differently — sometimes lawyers for employers are surprised a relatively low-ball offer is accepted. Others are left scratching their heads when an overly generous offer is turned down.
The employer will have to weigh its options, considering the cost of fighting a wrongful dismissal suit and the strength of its case, in determining the best route to go if the employer rejects the reasonable notice offer. In some cases, it will be worth anteing up a larger offer. In others, it will be more advantageous for employers to dig in their heels and let a court decide.
But if the employer has just cause to terminate the employment relationship, it can do so without providing the worker any notice whatsoever. But employers must tread carefully as courts have set the bar very high in putting the onus on employers to prove just cause. Many employers have gone into court with what they believed were open-and-shut cases and come out on the losing side. Heat of the moment firings, relying on one incident of insolent behaviour, are usually a recipe for failure in court.
So why is it so expensive to get rid of an employee without just cause? Courts have long recognized the power imbalance between employers and employees. Workers don’t have much leverage and are at the mercy of employers.
Since work is such an important part of an individual’s life, courts have put the onus on employers to behave responsibly when terminating employment. After all, an employer typically has deeper pockets and, as Justice Frank Iacobucci said in Wallace, employees are most vulnerable at the time of termination and that’s when they need protection the most.
