I always advise clients to consider their options when they must dismiss an individual (assuming it is without cause). Rather than automatically offering a package, and paying the employee not to work, I encourage our clients to consider whether a period of working notice could be viable. By doing so, at least they would get some value for their money. However, I often think back to a comment made by Mr. Justice Donnelly of the Ontario Superior Court of Justice, who, in the course of considering a wrongful dismissal claim, opined that “[w]orking notice is an institution almost invariably predestined to fail.”
When an employer decides to terminate an employee without cause, the employer has two options. They can provide the employee with working notice of termination, or they can give the employee pay in lieu thereof. Of course, there can be combined, and there are different ways to provide pay in lieu. However, that is a separate discussion.
There are pros and cons to either option. From the employer’s perspective, the biggest downside to pay in lieu of notice is that the employer effectively pays the employee not to work. Conversely, there are real and potential disadvantages to continuing to employ someone during their notice period. Their presence at the place of employment, particularly if they are bitter about the termination, may serve to harm employee morale. Employees that are especially vindictive may try to sabotage the company in any number of ways. For these reasons, employers are often reluctant to offer working notice. These concerns are even more compelling in the case of higher-level employees who may have access to sensitive information or may regularly interact with the company’s clients. Paying someone not to work is often perceived to be a justifiable expense, or at least a necessary evil, in order to alleviate these concerns.
In Elg v. Stirling Doors, the employer chose to provide Ms. Elg, a labourer, with working notice of termination. The notice was provided on Friday, December 10, 1999 and Ms. Elg’s last day of employment was to be February 4, 2000. On December 13th, Ms. Elg barely did any work, and much of what she did was wrong. She also demanded immediate payment for her banked overtime. The next day, Ms. Elg refused to sort her work product by length, as was the normal procedure. Rather, she placed it in a pile, disrupting work flow. An “unpleasant exchange” took place between Ms. Elg and her employer, Mr. Weishar, during which Ms. Elg told Mr. Weishar that the eight week notice period would be “eight weeks of hell” and that there was nothing he could do about it. She went on to state that Mr. Weishar is “the kind of employer that employees shot.” In response, Mr. Weishar reported Ms. Elg’s comments to the police and terminated her employment for wilful misconduct.
To summarize, we have an employer that acted in accordance with the Employment Standards Act by providing Ms. Elg with notice of the termination of her employment. We also have an employee that responded to this lawful action by intentionally performing her work improperly and at an insufficient pace, and then threatened to make her boss’ life hell for the duration of her notice period and indirectly threatened to shoot him. The words “just cause” do not seem inaccurate in describing this situation.
Ms. Elg sued for wrongful dismissal. The matter went to trial and was heard by Mr. Justice Donnelly. Having found the facts to be as summarized above, Mr. Justice Donnelly attacked the concept of working notice, stating that “[w]orking notice is an institution almost invariably predestined to fail.” The Judge went on to blame the employer, writing that the “consequence of his decision [to provide Ms. Elg with notice of termination] was predictable”, and that “only the precise form of that consequence was uncertain.” Further, Mr. Justice Donnelly wrote that “Mr. Weishar created the environment” and that “[he] will not now be heard to envoke that readily foreseeable confrontation made possible by his action as a basis for a claim that Mrs. Elg was dismissed for cause on December 14.”
My view remains that working notice is appropriate in certain circumstances. I also think it is inappropriate to effectively conclude that an employer is to blame if an employee responds poorly to working notice, as Ms. Elg did.
What do you think? Do you provide working notice in some circumstances? Or are you of the view that it is “destined to fail”?
Miller Thomson LLP
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