Em­ployee’s over-the-top let­ter is a tac­tic that could back­fire

The Hamilton Spectator - - BUSINESS - ED CAN­NING

Imag­ine this sce­nario: You have an eight-year em­ployee in your small busi­ness who is a some­what ef­fi­cient worker but of­ten a source of drama in the work­place.

In your small of­fice of eight em­ploy­ees, bad blood af­fects ev­ery­one im­me­di­ately. Not for the first time, you have to sit down with him and is­sue a cau­tion about his gos­sip­ing and con­stant over­re­ac­tions to small is­sues.

He doesn’t say much, nor does he ap­pear to ac­cept any real re­spon­si­bil­ity for his be­hav­iour or ap­pre­ci­ate what he is do­ing.

The fol­low­ing week­end you get this text:

Dear Boss, I have had time to think about our meet­ing the other day and I feel that you are, once again, ha­rass­ing me. I guess I should not be sur­prised as this is par for the course with you. If you are not be­lit­tling your em­ploy­ees or un­der­min­ing their de­ci­sions, you are usu­ally nit­pick­ing, es­pe­cially me, to death.

You don’t treat your clients any dif­fer­ent. Your billing prac­tices are dis­hon­est to the point of fraud. I am sick of be­ing re­quired to lie to and mis­lead clients to cover for you. On most oc­ca­sions that arises from your in­com­pe­tence and neg­li­gence. Quite frankly, I don’t know how you look your­self in the mir­ror every day.

From now on I want to be left alone to do my work and I ex­pect to be treated like a hu­man be­ing. Yours sin­cerely, Em­ployee Clearly, the law says you can ter­mi­nate this em­ployee. They are not in a union and you do not need a good rea­son. But do you have to pro­vide them with a sev­er­ance pack­age?

If there’s just cause for their ter­mi­na­tion, no sev­er­ance is re­quired. One way of defin­ing just cause is be­hav­iour or ac­tions by an em­ployee that de­stroy the re­la­tion­ship with their em­ployer.

If this was one of 50 em­ploy­ees work­ing on the front line and some­one with whom you have had very lit­tle con­tact, it might be ar­guable that they should at least get a warn­ing that if this be­hav­iour re­peats it­self they will be ter­mi­nated.

In an of­fice of eight, where you have to look at them every work­day, hav­ing been ap­prised of ex­actly what they think of you, it be­comes much more dif­fi­cult.

Of course, if you do get sued for ter­mi­nat­ing the em­ployee with­out a pack­age and it is shown at court that ev­ery­thing they said in their let­ter was per­fectly true, the judge’s sym­pa­thy will not be with you. Let’s as­sume, there­fore, that the ac­cu­sa­tions are largely un­true.

In the mes­sage, the em­ployer has been ac­cused of the crim­i­nal of­fence of fraud. The de­mand for nicer treat­ment fol­low­ing that ac­cu­sa­tion is a thinly veiled at­tempt at black­mail.

The courts, then, would very likely un­der­stand that re­gard­less of the ve­rac­ity of the ac­cu­sa­tions made by the em­ployee, the re­la­tion­ship has been destroyed. It’s also likely there would be a find­ing of just cause for ter­mi­na­tion with­out no­tice.

I don’t think I could ever spend a day work­ing with some­body who sent that mes­sage to me, re­gard­less of whether I had to pay out a pack­age. And be­lieve it or not, I have seen sit­u­a­tions in which em­ploy­ees wrote letters even worse than my sam­ple above. In­vari­ably, how­ever, the em­ployee was in­tent on trig­ger­ing a ter­mi­na­tion, be­liev­ing they would get a pack­age.

Some­times it works. Who wants to lit­i­gate the truth of such heinous ac­cu­sa­tions? How could that ever help your busi­ness, even if you are suc­cess­ful in de­fend­ing the claim?

Once in a while, how­ever, an em­ployer is suf­fi­ciently en­raged to stand on prin­ci­ple and the hope­d­for sev­er­ance money never ar­rives.

Em­ploy­ees send­ing such mis­sives are rolling the dice. Think twice be­fore hit­ting “send” in this game of Rus­sian roulette.

Ed Can­ning prac­tises labour and em­ploy­ment law with Ross & McBride LLP, in Hamil­ton, rep­re­sent­ing both em­ploy­ers and em­ploy­ees. You can email him at ecan­ning@rossm­cbride.com.

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