How do I tell if my severance is fair?

The Question:

I was terminated without cause from my job recently after working there for three years. The company said it was a business decision. They have given me three weeks termination pay and my benefits until this month. If I agree to sign a "full and final release and indemnity" form they are offering one additional week of termination pay and an additional week of benefits. Is this fair or should I ask for more?

The Answer:

Simple question without a simple answer. The test to determine appropriate severance requires a consideration of your age, tenure, position and responsibilities, availability of other employment and then, what the precedents say. When you buy a house, you look to what the other houses on the street sold for so that you do not overpay. The same goes for severance packages. Judges want to know what other employees in comparable situations received. Over time, a range starts to develop, which is a reliable tool to assess your own case.

The Question:

My employer drastically changed my job duties from special-project-based to different, more regular duties. I have brought this to the attention of my employer saying my job description is no longer relevant and I would like to be trained to enhance these learned skills they are taking advantage of and not paying me for. My employer agreed and said they would adjust it within six months as well as look at paying me based on the new job skills. It's 10 months later and nothing has been done. Should I just keep bringing it up?

The Answer:

If your job is considerably different than before you could argue that you were constructively dismissed, meaning you were effectively fired when your job duties changed and entitled to severance. However, to succeed, you need to show the changes were adverse to you and that it was unreasonable for you to remain at work in the new role. What is considered reasonable is viewed from the eyes of a judge – not you. Judges look at key objective changes, such as demotions and salary reductions, not your perceived concerns. Therefore, if your salary remained the same and the working conditions are not hostile, even if your job changed, you may have no choice but to remain at work, or risk walking away with nothing.

The Question:

The company that I have been employed with for 14 years is being purchased. This has been going on for over a year, but employees are not getting any information. The new company is based in the U.S. with no presence in Canada. This will effect about 20 employees with 10 or more years of service each. Is it better if we join forces and have one employment lawyer or should we each have a separate lawyer? We are afraid that we will be kept with the new employer and have to sign a contract and lose our seniority. They have already had layoffs. We think we will get a raw deal because we have stuck it out to the end.

The Answer:

When considering a single or multiple lawyers consider that there is almost always strength in numbers so hiring the same lawyer to pursue the case jointly provides both negotiating leverage on behalf of the group and a likely reduction in overall cost.

You cannot lose your seniority entirely as employment legislation requires your minimum entitlements to transfer to the purchasing company along with your job. However, some severance entitlements beyond the statutory requirements can be lost based on the wording of a contract. The contract can be negotiated but this does not always occur. Although you cannot be forced to sign a new contract, the purchaser also does not have to hire you if you do not agree to sign one. So you have to decide if it is better to have a job and a bad contract or go without both a contract and a job.

The Question:

I am co-owner of a small business (22 employees) in Ontario. My company has an employee who was not a great addition – her behaviour is disruptive and she created issues with staff and clients while being a mediocre performer. I can truthfully say that she was on track for termination if her behaviour did not improve.

Roughly 18 months ago she was diagnosed with breast cancer. She has been off on medical leave since that time and receiving long-term disability payments through our company benefit plan. She has notified us that she will not be back at work anytime soon.

I am aware that if she does return to work, we are obliged to make "reasonable accommodations" up to the point that the accommodations do not jeopardize our business (such as allowing her to work part-time or shift her responsibilities). If she returns to work and her old behavioural patterns recur, what kind of latitude do we have to terminate her without risking a human rights complaint for discrimination?

If her return is further delayed for an indefinite period, what rights does the company have to terminate her employment for "job abandonment?" What is considered a reasonable time frame to hold a job for an employee on leave before the company can terminate employment?

The Answer:

There is always a risk that terminating an employee shortly after a return from a sick leave of absence will result in a lawsuit or human rights complaint. Therefore, the key is in managing the process properly and making sure that the termination is truly for reasons unrelated to the employee's leave, which is not illegal. If she returns, you should oversee her performance carefully to ensure that you can demonstrate exactly what her alleged shortcomings are and that she was given a real opportunity to improve. If she fails, she can be fired for this reason.

If she cannot return, that is a different story. Once the medical evidence shows that she has no reasonable prospect of ever returning, you may (and I emphasize "may") be able to terminate her employment with a reduced risk of liability. The more dispositive the medical evidence is that she will never return, the better your chances of having your decision to fire her respected by the courts.

The Question:

I started with my company in 1999 in a unionized position, in 2000 changed to a different unionized position. In May, 2001, I started in management and stayed. I've had good ratings, and I don't miss work. Earlier this year, due to alleged "poor performance" they are sending me back to my unionized position, a position that I worked for 17 months, versus 12 years in management. Can they do this without terminating me and giving me severance? This is not a position that I want to accept.

The Answer:

Probably not. Although what you prefer is irrelevant. The question is whether the change is a demotion and since it appears that it is, you have the right to refuse, demand your managerial job back and if they do not comply, to demand severance.

The Question:

My company is refusing to pay my owed vacation pay after I have given notice to leave the firm. How can I best deal with their refusal to pay?

The Answer:

File a complaint with your provincial Ministry of Labour and let them deal with it. In some provinces vacation pay can even be recovered against the directors and officers of the corporation, giving them more of an incentive to ensure that you get paid what you are owed.

Daniel A. Lublin is a partner at Whitten & Lublin, representing both employers and employees in workplace legal disputes. E-mail: Dan@canadaemploymentlawyer.com

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