Toronto Employment and Labour Law Blog: Fired? Negotiating Severance: 10 Keys to Success

#3 WORKING NOTICE

When an employer terminates employment that employer has the option of escorting the employee off the premises and telling them not to return. Under those circumstances, the employee, unless terminated for cause, continues on payroll for the period of notice either set out in his employment contract or as a result of the application of the common law. At a minimum, the employee in entitled to the amounts set out in the Employment Standards Act. However, the employer has the right to notify the employee that their employment will end on a certain date in the future but demand the employee continue to work at their job until the future date is reached. Under these circumstances, the employee is being asked to work through their notice period. Once that notice period has come to an end the employee will not be entitled to any further notice. This approach saves the employer money that would otherwise be paid out for no work. In other words, the employee is working for the full term of their notice entitlement. At the end of that term the individual is no longer entitled to notice or compensation instead of notice because that employee has worked through their notice period. If the terminated employee refuses to cooperate and work through their working notice that employee, in doing so, may have given up their right to notice or compensation in lieu of notice.   

If working through the notice period would subject the terminated employee to a "toxic environment" or would cause the employee "mental distress" the employee may be able to avoid working notice and be paid over the notice period without having to show up for work. Such an arrangement would have to be negotiated by an experienced employment lawyer.

 Most corporate employers are concerned that providing working notice to a fired employee may cause more internal damage than it is worth. The employee knows that their days are numbered and is not motivated to do their best.  Loyalty to the employer has been lost. The employee's circumstances leads not only to a serious lack of motivation, initiative and focus but it may lead to actual internal dissension and potential destruction of intellectual property. As a result, if the continued contribution of the employee is needed over a transition period the employer may be convinced to enter into an agreement to pay an additional sum of severance to ensure, not only a good working relationship over the notice period, but also a productive transition prior to departure.

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