wellness | workeplace strategies

AFTER

the

FIRING

What Next?

By Beth Traynor It is well known that employers have an obligation to provide reasonable notice of termination, or pay in lieu of notice, to employees who are being dismissed, except in cases where the dismissal is "for cause." However, employees (and even their lawyers, occasionally) ignore the employee's corresponding obligation - to make reasonable efforts to mitigate the damages suffered by actively seeking alternative employment. To the extent that the employee is successful in obtaining comparable employment, the employer's liability is reduced. Employers' interests are therefore best served by supporting, to the greatest extent possible, the former employee's job search. The first step is to provide a letter of reference with as many truthful, positive statements as possible. But let's be realistic - the employee has sometimes been fired for a reason! If it's not possible to truthfully say something positive, say nothing substantive about actual performance. You can still make it sound positive by using the employee's first name and providing lots of information about the position and responsibilities, avoiding any reference to quality or quantity of work. For example: Joan has been with the company for seven years. During that time, she gained experience in a number of pos itions, most recently as a Customer Service Representative. In that pos ition, she was responsible for dealing with customers, keeping accurate records, working in a team setting, and reporting to members of management on a regular basis. We wish her all the best in her future endeavours. Another possibility for employers to consider is offering outplacement counselling. For long-service or high level employees, this is an obvious choice. However, it may be worthwhile to consider this option for other employees, particularly those who may not have strong job search or employment skills. Employers should usually pay, right away, any Employment Standards Act, 2000 termination and severance pay owing, unless settlement discussions are ongoing. There are a number of reasons to do this: * They are legally obliged to pay these amounts. * The employee may obtain comparable work during the ESA notice period, and no further amounts will be owing. What if the employer thinks the former employee won't even try to find work? It's important to keep the following statement from the Supreme Court of Canada firmly in mind: The employer bears the onus of demonstrating both that an employee has failed to make reasonable efforts to find work and that work could have been found. The question is, how? Assuming the former employee will stay in the same industry/profession/sector, employers should have good sources of information about potential jobs in that area. Keep notes about any appropriate job openings that come to your attention. If you can, assign 50 | CITYWOMAN ISSUE ELEVEN: JULY/AUGUST 2010 www.citywoman.ca

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