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”?
Stuart Rudner
Miller Thomson LLP
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Like always, I think that an analysis of the issue will result in an answer of balanced accountabilities. I agree to some extent with Justice Donnelly when he says that employers have some accountability in these matters.
If the employer can reasonably foresee that an employee would self destruct (noting that there are many employees who wouldn’t)during a period of working notice, then there is some onus on the employer (if they are working towards a good faith termination) to not put such a person in that situation. The employer would be setting the employee up for failure, and the current laws of health and safety (e.g. Bill 168) increase an employer’s onus to think about the sorts of risks associated with these situations.
That said, there is also an onus on the employee to make the situation (working notice) work. Regardless of the situation (i.e. job loss), the employee and employer still have an employment contract and are still governed by relevant employment law (e.g. Health and Safety Acts) and employer policies/practices. The employee is being paid for their time and service and as such is still required to perform their work in a satisfactory manner. A failure to do so can reasonably lead to a dismissal for cause.
In short, I do no agree with Justice Donnelly that all working notice situations are destined to fail, but I think what we need to make sure (to his point) is that a reasonable amount of due diligence is put in before working notice is undertaken, in order to reduce the likelihood of a negative situation occurring.
I see an analogy to hiring the employee in the first place. You enter into an employment contract thinking it will work out, and sometimes it doesn’t. As the hiring employer, you have an onus to do some due diligence to ensure the employee will work out. Even then you can only reduce, not eliminating, the likelihood of a poor ending. The same is true for working notice. You should enter into it with the goal of making it work, and need to do some due diligence around that. But, at the end of the day, it can still fall apart, and as long as the employer has done the pre-work, they should not be held as accountable for the unhappy outcome.
In the 22+ years that I have been in HR, I can only think of a handful of times where I have given or suggested working notice. Like everything else when it comes to HR and people – it depends on the circumstances, the person, how you reached where you are, etc. It is not an easy situation to be in for either side – as the employee, you are in an organization that no longer wants your services and being asked to work professionally and respectfully with peers who may or may not know; as an employer you have an employee you no longer wish to employee for whatever the reasons and are cautious and more guarded. It is an awkward relationship on both sides and a situation that has high demands to get through. I think it is better not to go with the working notice option unless you and the employee agree up front.
Employer to blame?? Not a fair statement to make as it takes two to tango BUT possibly of being partially if the situation was not well thought out in terms of the employee, the circumstances, culture, etc.
I would be reluctant to recommend a notice; and basically agree with the Judge that the employee attitude was predictable (slacking off etc.) The damage done to morale, work productivity etc. cannot be less than a person’s term of notice! Once that person is gone the company is still putting out the fires! The employee is not exonerated by the verbal threat which is against Bill 168. That is a separate issue, and regardless of what the cause of the provoke, threatening a person just isn’t acceptable.
I don’t believe that working notice “is destined to fail” however employers should consider that the productivity level of the employee may drop off. This is not necessarily deliberate but when an employee knows that their pay and benefits are nearing an end date they have a very real concern; finding new employment and worrying about how long that may take as well as trying to work full time while applying and interviewing for a new job. It isn’t just about the employer-they have created a very stressful situation for the employee and many employers are not as reasonable about providing flexibility to employees that need time to go to interviews. These situations should not require only the employee to bear the full burden.