Date: May 14, 2013
Author: Daniel Lublin
Publication: The Globe & Mail
I love the tales from the workplace trenches – everyday workplace disputes fuelled by misunderstandings, misapprehension of the law, ignorance or worse. Here are questions from three readers of this column, followed by the advice I would provide:
‘Working notice’ of dismissal
I was recently told that I was being terminated, or so I thought. The “offer” of severance required me to work for the company for six more months, after which point, my job would simply end. Worse, I am basically being asked to train my replacement. If I find another job during this time, I’m free to leave but without any severance. I was not fired for misconduct. Is this legal? Where is my severance?
The Answer: Giving notice of termination in advance instead of paying severance is completely legal, provided the amount of notice is satisfactory. There is no right to a severance payment if terminated without cause. There is only a right to a working warning of that termination. For every day of work during a notice period, the employee is entitled to one less day’s severance. Employers usually fire employees immediately and pay severance instead of giving working notice, but that is their choice. The employee’s preference does not matter.
What if an employer provides working notice of dismissal and an employee thereafter resigns, is fired for misconduct, or doesn’t show up to work, as many employees would prefer to do? The employer will receive credit against any claim for damages for each day of notice that could have been worked by the employee. Employees may not agree but their only option is to challenge the length of the notice they received, not the fact they were asked to work instead of being paid severance.
Employees are also expected to perform their jobs during working notice periods. After all, that is what they are being paid for. While employers must provide them with time off to attend any job interviews, the standards expected of these workers are usually the same as before notification of dismissal. Therefore, if an employer wants a worker to help train her replacement or finish an important assignment, it will usually be required.
Signing a document under duress
I am being told to sign a performance plan that contains a strict warning about my performance. There are many aspects of the document that I disagree with. The document says that I received appropriate training when I haven’t and it says that my boss has been available to assist me with the alleged shortcomings when she hasn’t either. When I said that I wanted some time to review the document and think about my response, I was sternly told that I had to sign the document “right away” or I would be fired. Can I be forced to sign a document I disagree with?
The Answer: Signed documents are seldom set aside without a very good reason – the threat of immediate dismissal is one of them. The courts require consent to be given freely and voluntarily. This means that you should be given time to review any important document and the opportunity to consult with counsel. Although these two points are not necessarily fatal to the employer’s position, the pressure of having to sign or immediately leave is enough, even by itself, to show the terms of that agreement should not survive. This principle applies to any workplace document signed in these circumstances. The more important the document is to the relationship or your legal rights, the more time and space you should be given to consider your response.
Being asked to change locations
My company has three offices in different parts of the city. I have worked at my current location for the last five years and I prefer it that way because it is the closest to my home. I am now being asked to move to the location the farthest away from my residence, which is an approximately 30-minute longer commute each way. I have a car but the extra mileage will add up as will the stress of an extra hour’s drive each day. Can I refuse the location change?
The Answer: Possibly. Geographic changes to your work location can sometimes be viewed as a constructive dismissal (meaning you can reject the change, leave and sue for severance). But there are a number of factors to consider. Does your employment contract state that your location can be changed? Have you previously been required to change locations? Is your employer going to compensate you for the extra costs involved in the drive? Do you have child care or other family obligations that necessitate you being close to home? Were you given advance notice of the change or is it being pushed on you immediately? Are you being singled out by the company or are others required to move as well?
The answers to all of these questions are important but generally if you have never moved locations before and the terms of your agreement do not permit it, being asked or told to commute significantly longer than before is a constructive dismissal.