That’s dangerous advice!
TOO MANY LAWYERS TELL CLIENTS TO MISBEHAVE TO GET SEVERANCE
Many clients ask whether they are entitled to severance pay if they retire or resign. Why? Because they feel that years of service entitle them to it, no matter how they leave their employment. When they learn that they must be fired to receive severance, they engage in misconduct hoping to be fired.
But if the misconduct goes too far, they may still receive no severance, so they do a delicate dance. Unfortunately, many lawyers advise their clients to antagonize their employer but not so much as to create cause for discharge — just enough that they will be fired.
Will a court determine such conduct to be cause?
For 16 years, Gunnar Christensen worked for
Armtec, a manufacturer and distributor of highway construction materials, as its office supervisor.
Christensen, with a long- standing interest in repairing and modifying firearms, operated a gunsmithing business out of his home. Sometimes he even worked on his side business during the work day. Armtec did not complain.
The small size and nature of the work in his Richmond, B.C., workplace meant employees had to work together closely and co- operatively. Indeed, Christensen and his manager, Donald Azar, had a good working relationship until the last three months of Christensen’s employment.
In December, four months before his ultimate dismissal, Christensen approached Azar requesting a transfer to Armtec’s Prince George office to replace their current salesperson who was expected to retire.
Azar simply committed to think about it. A month later, Christensen approached Azar again, stating he had family in Prince George and could expand his gunsmithing business there.
Azar replied he was sorry but the other employee’s retirement wasn’t imminent and, although things could change, he could make no promises. Christensen told Azar not to be surprised if he gave one month’s notice.
Other employees testified that, around this time, Christensen’s job performance and attitude began to deteriorate. He told one employee if he wasn’t going to get the transfer, he was going to move to Prince George anyway and set up a gunsmithing business.
At the end of January, following a sales meeting in Jasper attended by Armtec’s Guelph- based president, Christensen wrote a long memorandum to all of Armtec’s western Canadian employees who attended the meeting, and characterized Azar’s presentation as “listless, uninspired and evasive.”
Ch r i stensen told a co-worker he sent the memo “so that he could get fired to get a severance package,” claiming Armtec couldn’t fire him with just cause because of a memorandum. Another employee had warned him he would be fired if he sent this memo out.
His behaviour at work worsened. His gunsmithing activities increased during working hours, he played solitaire on his computer right outside Azar’s office, and his attire became more casual. He also came in precisely at 8: 30 a. m., left precisely at 4: 30 p. m. and took all his breaks exactly at their times, although that was not the office’s practice. He then took a long holiday with only a day’s notice.
The company responded with three memos. The first advised him that criticism such as in his memo must be delivered confidentially in the future, the second reprimanded him for excessive time during work hours on his own business, and the third advised that his absenteeism had become unacceptable and required a doctor’s certificate.
Meanwhile, Christensen inquired about disability benefits and went off on sick leave while continuing to work on his gun business.
While away, Armtec received a complaint from Xerox Canada that Christensen told one of its sales representatives Armtec would not deal with a company supportive of anti- gun legislation as he heard Xerox was.
Christensen stated that this is Armtec’s company policy, which was simply false. When Xerox wrote an official letter to Armtec confirming they took no position on anti-gun legislation, it came to the attention of Azar. Armtec informed them they had no such policy regarding gun- control legislation.
The court noted his conduct in his last three months was consistent with his trying to get fired rather then being ill, as he claimed. The court noted that, when he asked for a month off to deal with his purported colitis, he waited until the very last day to inform Azar, giving him no opportunity to reduce the disruption from his sudden, long departure. As well, he provided Azar the least information possible telling him his doctor had said Armtec didn’t need to know the nature of the medical condition.
The court said this conduct is “inconsistent with Christensen’s attempt to portray himself as an employee who wanted to keep the job even though his request for a transfer had been denied.”
His illness also does not explain his nasty email, his lack of attention to his duties in the last three months, his use of office time to work on his business or to play computer games and his change in work habits and casual clothing.
To the court, it was compelling evidence that he wanted to provoke a dismissal. It was the email he sent despite being warned by two co-workers the memo would get him fired and his discussion with one of them that the memo would not be just cause. The court viewed the memorandum as simply a very personal and public attack on the company president rather than anything constructive.
It concluded that, after he realized his desire for a transfer to Prince George would not be accommodated in the time frame he wished, he set out to provoke Azar into firing him, hoping for a severance payment. The court held that his deliberate actions to provoke a dismissal were cause for discharge.
Too many lawyers, as I learn when clients come to me for second opinions, instruct their clients to engage in misconduct in order to provoke a severance but try to stay on the line of not being directly disobedient, insubordinate and not commit egregious acts of obvious misconduct. This is dangerous advice. If a court finds a dramatic and disruptive change in an employee’s behaviour was designed to provoke a discharge, the company may well be at liberty to grant that employee their wish but without the requirement of any severance.