So you’ve been terminated…what’s your 48-hour plan?
By Shannon Whyley, K.C.
You’re at work. It seems like a relatively routine morning. Maybe there has been some added pressure for a little while, but you figured you could put your head down and work through this rough patch for a while longer. Your job may have lost a bit of the lustre it used to have, but you’ve decided you’re not ready to make a change yet.
And then suddenly it happens – the choice is no longer yours. You are called into a meeting with HR. A nervous manager quickly explains that they have made a “business decision” and slides some paperwork across the table. You’re told to take some time, to look it over, and not to sign on the spot. You’ve been given 7 days to decide what to do.
If you have found yourself in this situation, the world might feel like it is spinning out of control. You might be wondering what is the best path forward. “Do I need a lawyer? How much is it going to cost me? If I sign this, am I leaving money on the table?” These are some of the questions that might be swirling through your head during those first 48 hours.
The following is a general guideline offered to help you work through the first steps during this deeply challenging time. It is not a one-size-fits-all template, so make sure you consider your own circumstances and talk to someone you can trust.
Don’t panic. While this may be easier said than done, give yourself at least half a day to process what has happened before taking any concrete steps towards a set course of action, including legal action. You’ve just gone through one of the most stressful experiences of your career, and you are human after all. Get mental health supports if you need them. Some employers offer EFAP, career counselling or other forms of external support in situations of layoffs or terminations. If your benefits coverage has been extended, you may have coverage for some of the cost of sessions with a psychologist, social worker, or counsellor. If not, there may be access to cost-effective mental health supports in your area, or even talking to a trusted friend or loved one can help. Of course, if you think you may be at risk of harming yourself or others, call 911 and seek emergency assistance immediately.
Review the termination letter carefully. Does it allege just cause for termination or no cause? Has a severance package been offered? Are you being asked to sign a release? How long have you been given to consider the offer if there is one? Many employers will allow 7 days to review the offer and provide a response. If the period for review is any shorter than that, they should give you more time, so do not be afraid to ask for an extension – respectfully and in writing of course (email is fine). Do not let the expiration date pass before you communicate that you may be interested in accepting the offer or negotiating, if that is the case.
Consider your representation options. Do you have a union? If so, there should have been a union representative or shop steward present at the time you were given the termination notice who can explain your options. If you were not part of a union, you have some options including speaking to a lawyer, representing yourself, or accessing certain government agencies if there are employment standards issues or human rights concerns at play, for example. Keep in mind that engaging a lawyer does not necessarily mean you are starting a lawsuit and going all the way to trial. In fact, most cases start with a simple consultation and assessment to review the termination circumstances with you and advise you of your rights.
Beware of getting advice from AI chat-bots! General information can be useful, but it will not be tailored to your situation, may be out-of-date, or just plain incorrect. Particularly in jurisdictions with a small population like ours, AI pulls in data from other provinces with different laws that simply do not apply here. That may be a risk you are willing to run for $5,000 or a couple of weeks of severance, but it should not be a risk you are willing to run for a case that could be worth $50,000 or more.Triage any immediate financial strain. If your income has been cut off, will this impact your mortgage payment, car payments, childcare arrangements, etc.? Speak to your financial advisor if you have one and make arrangements for enough cash to cover any automatic payments that are scheduled to come out at a certain date. Also consider whether you might be eligible for Employment Insurance and consider making an application for EI benefits.
Reach out to local legal counsel in your province. If you need to go to the next step and consult a lawyer, be aware that lawyers practising in your province will know your situation best. Make sure whomever you speak to is knowledgeable about labour and employment law – this should be included among their practice areas that they advertise. They will also have expertise about the timelines required for different types of employment cases and may have a good rapport with the employer’s legal counsel, which can allow for ease of communication when negotiating and building credibility in helping articulate your position. Despite what is often depicted in popular media, having the most antagonistic lawyer you can find is not the best way to win your case or get the biggest settlement, and may result in additional and unnecessary legal costs. Lawyers are also bound by ethical duties of civility to be respectful and courteous to one another, so a failure to be respectful is an obvious red flag.
Rest assured you can seek legal advice in confidence. Your termination letter might have confidentiality provisions included with a severance offer, but this cannot preclude you from seeking legal advice on the offer. While you obviously should not be broadcasting the terms of a severance offer on social media or discussing specifics with former colleagues, sharing the general details with one or more law firms as you look for a lawyer is not off-side. If you do contact a lawyer to inquire about a potential retainer, and it turns out they have a conflict, such as through the firm having a pre-existing solicitor-client relationship with your employer, don’t worry. The Law Society has rules governing solicitor-client privilege and confidentiality, meaning that the lawyer cannot speak to anyone outside the firm about your case without your permission, and that includes even the fact that you made an inquiry about potentially retaining that firm.
Follow the intake process that law firms have in place. It can be tempting to try to jump the queue and immediately tell your story to the lawyer that you want handling your case on the day you were terminated. However, lawyers have professional conduct obligations they need to meet to determine whether they can take your case and to handle it with care. These include running conflicts checks, entering limitations periods, collecting basic information, and setting up the file. Lawyers use skilled support staff to assist with these tasks in the most efficient manner so that the lawyer handling the case can focus their time on certain aspects that must be handled by a lawyer, as well as on legal analysis, drafting, advice, negotiation and litigation. The lawyer you want to retain might be in trial on the day that you call, and you might not have the luxury of waiting for the next opening in their schedule to start the file intake process, so you will need to be willing to work with others in their office to get your matter started. Much like a medical or dental office, intake tasks are carried out according to established routines and procedures to ensure consistency, efficiency, and the best quality care and attention to each step by the right people.
Have a conversation about legal fees at the beginning of the engagement. Lawyers have several options for charging fees, including but not limited to billable hours, fixed-fee, and contingency. It is important to understand how you will be charged, and what initial “spend” is expected so that you can weigh your options, no matter what billing arrangement is in place.
Billable hours are often set by firms by determining the value of lawyers’ time based on years of experience and areas of expertise. This model provides the most accurate measure of the actual time spent on your case, but a common criticism is that the model lacks predictability for the client.
Fixed-fee arrangements can solve that problem, but don’t necessarily mean the cost will be cheaper for the client as they are similarly based on the law firm’s estimate of value – the difference being that this estimation of value is done from the front-end and set based on the task, rather than by selling units of time.
Contingency billing generally means the lawyer only gets paid if the case settles or is successful at trial, and then the law firm gets to keep a percentage of the amount (which might be quite a large percentage, since no law firm can guarantee outcomes and they still need to cover their cost for the cases they take on that are not successful). As with many services, you get what you pay for – so the cheapest legal counsel you can find might not provide you with the best solutions and advice.Work with your legal counsel to decide on a communication strategy for negotiations. Once you have retained counsel and had your initial conversation, consider a strategy for communicating with your former employer regarding the termination and any potential settlement. Do you want your lawyer on the record, negotiating on your behalf? Or do you want your lawyer behind the scenes providing you with strategic advice and assisting with drafting your correspondence while you seek clarification on a few items by dealing directly with your former employer? There are pros and cons to each approach. Your legal counsel can help you determine which approach is the best fit for your particular situation.
By this point you are likely past the first 48 hours and well on your way to having a plan for how much time, energy, and money you are willing to commit to seeking a resolution. This is not to say that there is any certainty until you have signed on the dotted line and the cheque is in the bank, but at least you will have some initial questions answered by those who have been down this road before.
Losing your job can be both scary and overwhelming. No matter what happens, remember that there is always a path forward. There is an inherent power imbalance that exists between employers and employees, and fortunately labour and employment laws in Canada are designed with this recognition in mind. The mix of common law and legislation in this area is generally designed to help employees land back on their feet again. Sometimes litigation is a necessary means of enforcing legal entitlements; in other cases, it just takes a conversation with the right legal counsel to assess your case and point you in the right direction before you accept a settlement and sign a release.