KerrLaw Logo JAMES D. L. KERR
TO:           Business Clients FROM:  James D.L. Kerr Lawyer
            17 – 151 Merton St.            
, Ont., M4S 1A7
            Tel 416 485-4254
            Fax 416 485-8836

            Certified Specialist Civil Litigation
DATE:      September 15, 2003

I recommend that when terminating an employee’s employment without “just cause” (see my Client Memo on Employment Law posted at my web site – click on “Client Memos”), employers adhere to the following (with such variation as is necessitated by the circumstances of the particular termination):

 1.                Meet with the employee.

 2.                Do not meet with the employee alone but have, in attendance, a third person who will be able to confirm the discussions and agreement reached, if any. 

 3.                At the meeting, advise the employee, in the kindest possible terms, that:

(a)               As a necessary consequence of restructuring (or whatever other innocuous excuse you wish to offer), that employee’s job is being eliminated. 

(b)              While termination is, accordingly, inevitable, you wish to be fair with the employee and it is not your intention to impose severance terms on the employee unilaterally and arbitrarily.  You want the employee’s input and cooperation so that a mutually acceptable accommodation can be achieved.

 4.                Do not use any language which implies that the employee’s termination is as a consequence of any shortcomings or incompetence on the employee's part. 

 5.                Allow the employee a reasonable opportunity to consider the offer, say, one week.  You should advise the employee that if he/she neglects or refuses to respond to the offer, you will have no alternative but to act unilaterally in accordance with your own view of fairness.

 6.                You should recommend to the employee that he/she seek independent legal advice before accepting or refusing the offer. I recommend that you offer to contribute a reasonable amount towards the employee's legal fees (say, $250 to $500 plus GST). 

 7.                You should try to make the employee understand that confrontation is in neither party’s interest.  Litigation is time consuming, stressful and costly and while litigation is pending (2 to 3 years on average) the employee will receive no compensation from the company.  In any event, about 97% of all cases are ultimately settled by compromise and such compromise can be achieved either before or after incurring legal expenses depending on the employee's response to the termination.

8.                If settlement is achieved, the settlement will be confirmed by letter to the employee and the employee will acknowledge his/her agreement on a copy of the letter.


DISCLAIMER: The foregoing is not intended to be a comprehensive guide to the applicable law. General Client Memoranda and mailings from James D.L. Kerr ● Lawyer are intended to inform clients and acquaintances with respect to current issues that may be of interest to them. Memos are current to the date shown on the Memo. The law is constantly changing, however, and for that reason a Memo may not be completely accurate after it's stated date. Where circumstances warrant, the advice of a lawyer or other qualified professional should be obtained.

2005 James D.L. Kerr