Entrepreneurship & Small Business

Employment law. Letting an employee go

  • Last Updated:
  • Dec 20th, 2017 10:50 am
[OP]
Jr. Member
May 20, 2002
188 posts
25 upvotes

Employment law. Letting an employee go

I am looking for advice.

I have a pet store and for the last 2 years we have had an underperforming employee. It is time to let her go. We are concerned she will sue us for wrongful dissmissal.

Our main reason is economic. We have been open for 2 years and have not made a dollar yet. The next issue is the increase of min wage.

She is working about 20 to 25 hours per week. The only way to make up for some of those hours is to give half them to another part timer.

Will this cause us issues? We have never had to let any one go to date.

Of course making things more dicey is that she is the mother in law of our manager.

Are we ok? Should we get an employment lawyer? How much notice?

Thanks for any help. This is really stressful for us.
11 replies
Deal Fanatic
User avatar
Mar 23, 2008
7154 posts
4100 upvotes
Edmonton
You don't give a location, so... I'd assume Ontario, since you mention a minimum wage increase.

Check your local employment standards. See what kind of notice is required to give to someone who's been employed as long as she has. Give her that much notice as a minimum, or just pay her for her regular hours for that period and tell her not to come back. For example, if she's entitled to 2 weeks notice at 25 hours per week, pay her out for 50 hours. If you want to be generous, bump it up.

Don't give her any excuses or reasons. Canada is an "at will" employment state, which means either party can terminate the agreement for any reason (assuming it's not a charter of rights thing, like religion, gender, etc). So anything you give as "justification" can't benefit you, and can only harm you.

As far as her suing you for wrongful dismissal, see above. If you follow the rules on notice, she will have no grounds. That's not to say she can't sue you, but she shouldn't be able to win. As far as being the "mother-in-law of your manager", that's an issue between the two of them to sort out. Depending on how they get along (and you get along with the manager), you may want to bring them in on the decision in advance so they're not blind-sided by the decision. But if you think the first thing they'll do is go tell the employee, then tell them just before you tell the employee. Of course, that may undermine your relationship with your manager, so...

BTW, firing someone right during Christmas is a pretty crappy way to go. I'd probably try to avoid doing that, plus this should be your busiest time of the year.

And if you haven't made a profit in 2 years, your problems might not be economic...

C
Member
Jan 3, 2017
308 posts
218 upvotes
Assuming Ontario, somewhere else check the Employment Standards Act as rules will differ

You can fire any one at any time for any reason in Ontario as long as it is not a human rights violation. Which would include things like religion, gender etc as stated above. The only decision that has to be made is if it's a constructive dismissal or if the employee is being let go for cause. With the former, severance must be paid, for the latter no severance needs to be given. HOWEVER

The situation you are describing is not justifications for being let go for cause. Cause would be something like theft, violence in the workplace etc.

So in the end, assuming this is Ontario you can fire her for any reason you like assuming you pay her severance or give her notice. You would be giving her a constructive dismissal and would need to pay severance or give notice in accordance with the labor laws in your province

Wrongful dismissal gets tossed around a lot without most people knowing what it truly means. An employee does not sue for wrongful dismissal because they don't agree with the reason for being terminated. An employee would sue for wrongful dismissal because they were terminated without beign given one of the following: A) proper notice or B) compensation (severance).

Most employers chose to go with compensation rather than notice simply because who wants a pissed off employee still working for them for a few more weeks or months. The damage a rogue employee can do can be extremely damaging.
Deal Addict
User avatar
Aug 15, 2015
1111 posts
148 upvotes
Markham, ON
Maybe get the manager to break it to the mother in law.
Member
Dec 15, 2015
458 posts
261 upvotes
Toronto
In short - no you are fine. Just call them into a meeting, maybe have a lawyer figure out a fair severance, have them draft up the memo and that's it. Most terminate on the spot as having an employee work out the remaining two weeks isn't ideal. Especially if they are bitter.

I'd say the only thing you have to worry about is the actual conversation, would be tough to let someone go during the holidays. But also kinda your fault for letting a slack employee drag out for 2 years.

Curious to what your pet shop is called? Side note, considered branching off to walks and day boarding to make more money?
Member
Feb 12, 2009
251 posts
40 upvotes
North York
PM me

I am a personal trainer and one of mycliebta does employment law. He is in Thornhill.
Deal Addict
Aug 28, 2007
1848 posts
243 upvotes
Calgary
You are certainly entitled to let someone go on economic grounds. It would be an easy case to make because you haven't made any profits recently. That means you don't even need to mention anything about the "under-performance"... not the employee nor the manager. You can focus only about the "the bad economy". That makes for less drama around the office in the near term.

In Alberta, the notice you have to give is stipulated by the Labour Standards laws based on employees' length of service but they are quite paltry. Most people don't keep the employee on after breaking the news (for lots of obvious reasons) so defaulting on the notice period is pretty standard. Hence that means we are obliged to pay the employee for the notice period. In Alberta it is only 2 weeks; probably less for part-timers. Since I am in Alberta with red-neck rules, I would advise checking with Ontario labour standards website as a prudent measure.

I also want to mention the one item that will come up after the "bad news day" is... the reference. I always struggle when talking to another small business person who is considering hiring this person I just laid off. I am uncomfortable being forced to lie to another business person but I don't want say bad things about a person... their next job might be perfect for them. IMHO, the reference process is the more likely place where you could get yourself into some sort of legal mess by saying something you shouldn't. I find that more awkward than the "bad news" day.
Newbie
Dec 12, 2017
1 posts
1 upvote
FryGuy1987 nailed the situation, as it pertains to employment and severance entitlements in Ontario. To get a better idea of what you might be looking at in terms of notice/severance owed to this employee, use http://www.severancepaycalculator.com/
[OP]
Jr. Member
May 20, 2002
188 posts
25 upvotes
Thank you to all those who replied
Deal Guru
Aug 2, 2010
12562 posts
3084 upvotes
Here 'n There
Yeah, just give this employee who is the author of her own misfortune proper notice as other have advised and its 'hasta la vista' baby!

Also, remember that when you fire an under performing employee you are doing them, the employees you retain and yourself a HUGE favour and should not feel bad. Better the under performing employee's head rolls rather than the business and your other employees suffer and what's worse, the business have to close down because all you had was under performing employees.
Deal Fanatic
Feb 9, 2009
6504 posts
3613 upvotes
I think you can fire without giving reason - will just have to pay the appropriate severance.
Deal Addict
Jul 3, 2017
2868 posts
1929 upvotes
Just make sure that you purge the first thing you wrote "under-performing employee" from your brain in case it accidentally comes out during this process. In order to establish that, you would have to show a pattern of under-performance compared to the job requirements, repeated specific warnings to the employee to improve elements of their performance, followed by failure to improve those elements, all demonstrable in written records. If you don't have that, it doesn't exist, and citing it can only cause trouble.

Keep it simple: financial reasons, reluctantly must cut back employees, she has to go. So sorry, here's your fair and legal severance. Wait until January so it's not a Christmas firing. People never take firing well, so be prepared for some blow-back if she's part of your extended family.

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