THE QUESTION
I am a new immigrant and started with a large IT staffing firm in an account management sales position. Four months later, they terminated my employment, with no cause mentioned.
I have a deadline to sign the full and final release. The document has a non-compete clause that differs from what I signed when joining the firm. The release document states that if I sign, I would be given an extra week's pay.
The HR manager said if I don't sign, the company would not release my employment record and I would not be able to get employment insurance payments. I do not want to sign as it limits my rights, and is confusing. I am also owed expenses.
THE FIRST ANSWER
Daniel Lublin Partner at Whitten & Lublin employment lawyers, Toronto
There is a right and a wrong way to dismiss an employee. Unfortunately, too many employers get it very wrong.
When an employer dismisses an employee for any reason other than misconduct, there are certain payments and terms that it must unconditionally provide, including unpaid wages, outstanding expenses, any accrued and unpaid vacation pay, statutory termination and severance pay, and in many cases, some continuation of health and dental benefits for a certain period of time.
These are basic rights upon termination and not something that an employee should have to negotiate for or sign any legal documentation in order to obtain. If an employer refuses to release these payments, file a complaint with your provincial or federal Ministry of Labour, or pursue these claims with a lawyer as part of a broader lawsuit or threatened lawsuit.
Similarly, an employer must also unconditionally provide dismissed employees with a written Record of Employment, which is a government document confirming a loss of employment that is used to apply for employment insurance payments. The federal government requires employers to provide this document within seven days of a termination or layoff. Therefore, demand that the employer provide your ROE immediately and do so in writing. In at least one case, an employee was awarded punitive damages to compensate him when an employer withheld this document, despite knowing that it was required by law to provide it.
THE SECOND ANSWER
Greg Conner Executive director of human resources, BC Transit, Victoria
While I am normally loath to recommend this as a first course of action, I suggest you run – don't walk – to your nearest employment lawyer. What the HR manager and the company are doing is not only unethical , it is also not legal.
While non-competes are common in the sales world, they are hard to enforce especially if they have terminated you, versus you resigning, as it affects your ability to earn a living. Offering you an inducement to sign a release that has different non-compete language from your hiring package is not illegal, but I cannot help but think that they are doing so to make it even more restrictive.
Get some legal advice. It will be money well spent.
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