Involuntary Termination or Firing
If it is decided that someone needs to cease working for the practice, careful planning and consideration must take place before executing this decision. Practice owners need to think about how the work will be reassigned, whether to provide the individual with working notice, and how the news will be received by the person being terminated and others at the practice. There also needs to be a plan in place as to how the news will be shared with the remaining members of the practice after the person is terminated.
It is strongly recommended to seek legal advice before terminating a contract if: there are no notice periods in the contract; you are not planning to provide notice; or if someone has recently returned from or is planning a medical, parental or familial leave of absence. The lawyer’s input will be invaluable with regards to how to handle the termination appropriately and hopefully avoid any legal conflicts.
Involuntary termination is typically an emotional process for both the practice delivering the news and the worker receiving the news. A range of emotions and reactions can be displayed and it is hard to predict exactly how the decision will be received. Keeping a termination conversation brief and to the point is often best. Typically the lawyer can advise on appropriate talking points that will keep the termination conversation from escalating.
After the termination news has been shared with the practice member, the rest of the practice group should also be informed of the termination decision. This information should be delivered in a respectful manner. If the other practice members have questions or concerns as to how this termination will affect the practice, those should be answered in a straightforward manner while protecting the worker’s confidentiality. If the worker will continue working until some end date in the future, consider when would be the most appropriate time to notify the other workers and whether/ how to notify clients.
Notice of Termination
Employees are entitled to the statutory notice or equivalent pay when being terminated without cause. If an employee has an enforceable contract stating that only the statutory notice is required, that is all that is required. However, under certain circumstances a higher level of notice (or pay in lieu of notice) will likely be required. If a valid employment contract provides for a specific higher level of notice, a court will likely enforce that amount.
An employee may also be entitled to “common law notice” if the contract is silent on termination notice, if there is no contract, or if an employee’s job or responsibilities have changed since they signed their contract. Unlike the statutory notice, which provides a simple formula for calculating notice periods, the length of common law notice is based on consideration of a number of factors. These are: the nature of the employment; the length of the employee’s service to the employer; the employee’s age; and the availability of alternate employment. In general, older, long-term, specialized, and managerial employees are entitled to more notice (or pay in lieu of notice) than younger, short-term, general, and non-managerial employees. The notice period is one of the mostly frequently litigated issues in employment. Note that common law notice is not in addition to Employment Standards Act (ESA) minimums, but rather instead of it, as it is longer.
Independent contractors are not entitled to statutory notice under the ESA, but they may be entitled to notice before their contract is terminated, where stated in their contract or where their contract is silent. The amount of notice required depends on the industry and the parties’ relationship. If a court determines that a contractor is in fact a dependent contractor, they will likely treat the relationship – at least vis-à-vis notice of termination – as though it were one of employer and employee.