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

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.