THE QUESTION
I've been with my current company for 13 years, but I've just been offered a new position with another company. Is it common for people to request some protection from termination during the first year? I want to ask for six months' severance – I just don't want them to withdraw the offer.
The flip side of this is that the company wants me to agree to a probationary clause that says they can let me go for any reason during the first three months. Is this common? Considering I'm pretty interested in this opportunity, What can I do to have this language removed?
THE ANSWER
You should not leave a long-tenured position for another without some protection if things don't work out. You can accomplish this by trying to define your severance entitlements in the first few years or, alternatively, by insisting that the contract remain silent on the issue of termination, which requires the employer to treat you fairly in the event you are let go.
Remember, if you can negotiate salary, you can negotiate any other terms of your employment, including termination language – so you should not fear raising the issue, especially if you are being recruited to leave a long-term job.
You should remove the probationary clause or reconsider taking this new job. Probation clauses usually state that you can be let go for no reason during an initial trial period. If this clause is drafted properly, it will hold up in court, so you are taking a big risk if you resign a long-term position to become a probationary employee at another.
THE QUESTION
I was terminated for being wrongfully accused of stealing wood pellets. I worked at a wood pellet plant. Our site supervisor told all employees that we were allowed to take pellets home for our own use. There are five other employees that were and still are taking pellets home, including the site supervisor, but only two of us were fired. Is this wrong? Do I have a case?
THE ANSWER
You cannot steal what you had permission to take. If taking pellets was and is still condoned, and you were fired only for this reason, your former employer will have to pay you severance.
THE QUESTION
I am in the process of filing a bullying complaint against my co-workers. I made a written complaint to my manager already. If the situation is not addressed properly or at all, what are my next steps?
THE ANSWER
If you make a formal or even an informal complaint, your employer has a legal duty to investigate it and take appropriate measures to prevent any bullying or harassment in the workplace. If your manager is not properly dealing with the issue, speak to another member of management or to a human resources representative, if one exists. It's a good idea to document in writing that you are making a complaint, although oral complaints still require the employer to act.
If your complaint is not addressed and the workplace becomes intolerable, you can resign and demand that the company provide you with a severance package as though it terminated your employment. This is referred to as a constructive dismissal. You can also demand additional compensation on account of any mental and/or physical effects of the bullying and/or harassment, along with the employer's condoning of the bullying, on your well-being. If the bullying relates to a personal characteristic, such as disability, race, sex or religion, you can also sue for discrimination.
THE QUESTION
I told my employer that I did not see my job working out in the long run and that, in about six to 12 months, I hope to have another job or go back to school. They then gave me a letter accusing me of resigning. Although I was giving them notice that I would be leaving in the future, it was not my intention to resign immediately. Is this proper and What can I do?
THE ANSWER
You may be entitled to damages because you were not resigning at this time. Write to them immediately and repeat that you are not resigning, and expect to keep working. The employer can ask you to return to work or it can maintain that you have resigned. What you initially told them was not a resignation with immediate effect, so legally you would be entitled to damages for a reasonable period of time. That time frame would depend on your age, position and tenure.
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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