If you have been dismissed, you may be entitled to significant compensation. This can include severance pay, outstanding bonus, compensation for bonus during the severance period, benefits, pension contributions and other amounts. You might be able to get outplacement assistance paid for by the employer and some employers may even pay for your reasonable legal fees to get everything worked out. If you have been given a severance package or a termination letter, here are a few points to keep in mind:

1. Don’t Sign Anything!

Some employers will ask you to sign a severance proposal on the spot, possibly even while also making some threats about what might happen if you don’t sign. Fortunately, most employers are not that unreasonable and would prefer to allow you some time to consider an offer. Take the offer, say very little and let the employer know you will get back to them. Even if you are in a difficult economic position, you will rarely benefit from signing something on the spot at the time of dismissal.

2. Be Professional

Resist the urge to attack the employer, launch an email missive directed at company personnel or say things you might later regret. Such statements or emails are rarely helpful or productive. If you are being investigated for cause and you are being asked about certain allegations, you may have an obligation to respond. But once you have already been dismissed, there is rarely anything that you might say at a termination meeting that will help with your severance negotiations or with your future references.

3. Find Your Original Employment Contract

One of the first things you should do is find a copy of your original employment contract or offer letter. There may be a “notice clause” or a “severance clause” in the document. If your employment contract or offer letter does have this kind of clause, it may limit your entitlement to severance or notice. You might be stuck with a very limited severance payout. There are some ways around these types of agreements, but not always. This can be very technical and will almost always require professional assistance.

4. Gather Information

For the best assessment of your employment situation and potential severance, you should gather key documents and information. Your compensation information for the past three years will be crucial including a breakdown of your base salary, bonus (if any), RRSP or pension contributions, car allowance, stock options or share purchase plan amounts, and other components of your compensation. As well, it will be helpful to try to put together a narrative of what occurred that you believe led to your dismissal. If this is a complete surprise and is really just a “restructuring,” there may be no need for an accompanying narrative. You should also try to make sure that you have any relevant emails, memos, performance assessments or other documents that relate to your performance or the reasons for your dismissal. If you are being dismissed for cause, it may be important to get witness statements about what took

5. Get Expert Legal Advice

If you have been provided with a severance package or you have been dismissed “for cause,” you should get specialized legal advice as soon as possible from an employment lawyer. You may be entitled to far more than the amount that the employer has offered. The employer may be willing to pay reasonable legal fees. You might be able to get certain clauses deleted or modified. Proper legal advice in this situation will usually involve a consultation fee. But you are entitled to objective advice about the best way of dealing with your situation and sound professional advice is almost always going to involve a fee. If the advice is “free,” you should check carefully what kind of retainer you will be expected to provide afterwards or what percentage of the settlement your lawyer will take. You should also find out whether the percentage is related to the whole package or only the improvement. You should feel comfortable with the overall fee arrangements not just the initial consultation itself. You should also feel comfortable that you will get the lawyer’s full attention at the initial meeting without an artificial time constraint so that you have enough time to go over everything that may be relevant.

6. Hit the Ground Running

In most cases, the best way of dealing with a dismissal is to begin the process of finding new employment fairly quickly. You should ask your employer for a reference letter or confirmation that you will be given a positive reference if the employer is phoned. Brush off your resume and consider getting professional assistance in developing a new version of it. Start using internet sources ranging from LinkedIn and Workopolis to Facebook and Monster as you put together your job search strategy. Keep track of all of your efforts, informal and formal contacts and applications. Try to set up “informational meetings” as well as interviews. Try to take care of yourself, which might include getting some exercise, making sure to get out and staying in contact with people important to you. Having a strong support network can help you feel positive about your transition and can also produce employment

Kenneth Krupat, Barrister
2000-393 University Avenue
Toronto, ON M5G 1E6
Phone: 416-593-0400
Fax: 416-593-0668
e: kkrupat@joblaw.ca
www.joblaw.ca

Knowledge and Expertise

Does the lawyer practice exclusively in the area of employment law?  A lawyer who specializes in the area is likely to be on top of the latest cases and trends.   An experienced employment lawyer will have provided advice in hundreds, if not thousands of wrongful dismissal situations and will be able to provide you with an appropriate assessment of your case at an initial consultation.  You should not have to pay for the research or “getting up to speed” time of a lawyer who only dabbles in the area.

Accessibility

Will the employment lawyer you have chosen handle your case personally?  Some firms will promote one lawyer in particular but when you go to arrange a consultation, you might be meeting with a junior lawyer or a lawyer who does not even practice employment law exclusively.  Make sure that you meet with the lawyer that you have selected.  After all, if you are interested in the experience and track record of a particular lawyer, you will not be getting that same benefit with a junior associate.  If the lawyer is not available and proposes that you meet with someone else, check in to that other lawyer carefully before agreeing to a meeting.

Interest and Reasonable Advice

At an initial consultation, an employment lawyer should be prepared to spend as much time as you require to review everything and provide proper advice.  You will need to assess if the lawyer is really listening to your story and if the advice given sounds reasonable and feasible.  The lawyer should be able to review the pros and cons of your case and provide a reasonable range of what the case should be worth.  The lawyer should also review the impact of “mitigation” with you and review any employment contract or offer letter that you might have signed.   You should have a comfort level that the lawyer knows the practice area, understands your situation and has a solid plan for dealing with it.

Fair Billing Practices

Most employment lawyers will charge an initial consultation fee.  The lawyer will review your situation and provide advice.  Sometimes the advice might be that the severance package makes sense for you in all the circumstances.  Nothing further might be required.  Other times, the advice might be that your case is not worth pursuing.  More often that not, there will be some room for improvement if you have been offered a severance package.  Legal fees in employment law situations are generally tax deductible against any severance pay.  Often, the employer will agree to pay the fees.

It is often the case that you will get what you pay for.  If you meet with a lawyer for a “free consultation,” you may not get very much advice about your situation.  At the consultation, the lawyer may ask for a very large retainer or a very high percentage of the results.  Before you go to a free consultation, you should ask about the billing practices that the lawyer will be using if you retain him or her.

Going forward, there are different billing practices that lawyers often use.  You should have a clear understanding of how you will be billed and a reasonable ball park estimate.  Some lawyers will charge an hourly rate.  If this is the case, you should get a reasonable estimate of the amount that is likely to be billed at each stage of the proceeding.  You should check if your lawyer charges a “premium” on top of the hourly rate.  If so, you should be wary of how your bill might be calculated.  If the lawyer is already billing you an hourly rate of hundreds of dollar, what is the “premium” charge for?  Doing a proper job?  If the lawyer proposes charging a premium, ask for benchmarks. And ask for a corresponding reduction in the hourly rate if the results are less than discussed.  This arrangement should all be put in writing.

Other lawyers will charge on a contingent basis or a mixed-contingent basis (mostly contingent with deposits at different stages).  If the arrangement is contingent, you should clarify the percentage and ensure that you are only being charged on any improvement to your severance package.  Some lawyers propose a contingent fee that is based on the entire final severance package, even if there has been an initial offer.  So if you were to walk in the door with an eight month severance package and walk out the door with twelve, you would be paying the lawyer a percentage on the eight months that you already had when you walked in addition to the four month improvement.

For clients, fair billing practices is a very important issue. There are many well known employment decisions in which the case went on for years before a judgment was obtained.  In some of these cases, the only parties to benefit were the lawyers.  The plaintiff was left with little, if any, of the judgment amount after paying the legal fees.  You should ensure that the amount you will be required to invest in your case will, at the end of the day, be reasonable in relation to the results.  You should be prepared to ask questions about any billing arrangements that are proposed and you should be able to come up with a fee arrangement with which you are satisfied.

Diligence and Timing

When meeting with an employment lawyer, you should be able to work out a reasonable timetable for the progress of your case.  Most dismissal cases are time-sensitive and require action quickly.  Your lawyer should be able to get things done within a reasonable time frame.  If your lawyer will not able to get to your file for a few weeks, or longer, you may need to consider finding a lawyer who is prepared to make your case a priority, even if that lawyer has many other cases going on simultaneously.  In most cases, an initial demand letter, if required, should go out within a day or two of your consultation.  You should, of course, ensure that you will be reviewing all correspondence that your lawyer sends out on your behalf before it is send.

Philosophy and Results

It is very important that you choose a lawyer who is going to be well suited to the approach that you would like to take.  If you have been given a severance package that is somewhat reasonable and you are looking for the right approach to have it improved, that may require one type of skill.  In this situation, often a reasonable sounding letter that does not overreach will get great results.

In other situations, where you have been treated unfairly and given a low-ball severance package -or where just cause has been alleged improperly, you may require a much more aggressive approach.

You should also feel free to ask your lawyer about trial decisions.  Note that the actual decision is not the only important thing.  What did the client wind up with at the end of the day?  How did that compare to any offers that were made before  a trial or at mediation.  If the lawyer tells that he or she is always in court in employment law cases, you should be concerned about whether a reasonable approach will be taken in your situation.  After all, the vast majority of employment law cases can be resolved well before a trial unless one side or the other is being unreasonable.

Some lawyers pride themselves on having a very aggressive reputation.  This might work occasionally.  But more often than not, taking an unnecessarily aggressive approach will simply lead to lengthy, time consuming, costly litigation that will not necessarily be in your best interest.  Usually, the lawyer in these situations will ask for a huge retainer to bankroll that kind of litigation approach or will send exorbitant monthly accounts.

Choosing the right employment lawyer is a very important decision and one that could be quite costly if it is not made properly. Meet with the lawyer you have chosen and make sure that the lawyer and the proposed approach are right for you in all the circumstances.

1.  Remain Calm and Professional

This is one of the hardest things for many people. That is quite understandable, particularly if the termination has been handled poorly or is a bad faith termination.  For many dismissed employees, it will simply be a short meeting with the boss and an HR representative, or perhaps, just your supervisor.  Often, these meetings are very short and little is said.  Perhaps you are not even provided with a reason for the dismissal other than “the company is making a change.”  In any case, it is rarely helpful to argue or debate the issue.  It is almost always an irreversible decision and you will now have to move forward in the best way possible.  You should avoid the urge to do anything rash or impulsive.  Nasty emails sent around to company personnel or clients are almost never helpful, although a short and sweet goodbye note may sometimes be appropriate, if acceptable to the employer.

2.  Review the Termination Letter But Don’t Sign

Dismissals in Canada will generally be “with cause” or “without cause.”  If you are being dismissed “with cause,” you may not be offered a severance package.  If you are offered one, it may be one that is greatly reduced as compared to what you might have been entitled to receive in a without cause situation.  If the dismissal is “for cause,” it may be helpful to try to ask questions at the dismissal meeting about the allegations that are being made, the basis for the allegations and other related questions.

If the dismissal is “without cause,”  you will almost certainly be provided with a severance package.  In most cases, the employer will ask you to sign a release or some other agreement accepting the package.  You should never sign this type of document immediately.  You may well be entitled to significantly more than you are being offered by the employer.  If the termination letter references an “employment contract” that you signed when you first started, you should ask for a copy of it if you do not have ready access to it.   The employment contract may well set out the employer’s severance obligations and you may or may not be able to challenge this type of contract.  If you can’t find it, you may want to get a copy from HR, especially if it is referenced in your termination letter.

Whether a dismissal is for “cause” or “without cause,” it can still be considered a wrongful dismissal if you have not been given full proper compensation.

3.  Avoid Publicizing Immediately and Help Yourself

Although it might be tempting to immediately announce your departure on Facebook, LinkedIn and other social media, you should tread carefully.  It is usually not helpful to begin telling everyone immediately that you have been fired.  Consider contacting some close former colleagues or supervisors who may be prepared to provide you with a helpful reference or ideas about suitable job openings.  Consider some other contacts who may have ideas about the types of positions that would best suit you going forward.  Of course if there are people close to you, a spouse or partner, close friends, parents or others, it can be very helpful to share everything with these people, discuss your feelings and emotions and get support.  If you feel that your health has been affected, you should not hesitate to speak with your physician or, if appropriate, other health care providers such as a psychologist or psychotherapist.  Some people may find comfort in confiding in clergy, many of whom can be very empathetic.  Others may find it helpful to ramp up an exercise routine.  Whatever works best for you, take steps to keep yourself on a solid emotional footing.

4.  Meet With a Lawyer

Whether you have been dismissed for cause or without cause, this is still important.

If your dismissal is for cause, this may be something that you can challenge.  You may be entitled to significant compensation, even though the employer has claimed that it has “just cause.”  The law in Canada is quite favourable to employees.  It is very difficult for employers to succeed with a just cause defence, particularly if the defence is based solely on poor performance.

If your dismissal is “without cause,” you may well be entitled to significantly more than the employer has offered.  Have a look at what is included in the severance package.  There may be items missing such as bonus, benefits, outplacement or the severance may simply be too low.

Most employment lawyers will charge a consultation fee for this type of review.  The fee is tax deductible and often employers will pay it.  This advice may be quite valuable.  After a proper review, if you are advised that everything is in order and the package is reasonable, this may be money well spent.  Some lawyers offering a “free consultation” will avoid providing detailed advice and will try to get you to commit to providing a large deposit without really providing a proper assessment of what you should expect.  With a proper legal consultation, you should leave the meeting with a good sense of the likely range of improvement in your package if you proceed, the anticipated legal fees and an understanding of relevant legal issues.  You should not commit to anything other than a reasonable initial consultation fee for a first meeting with a lawyer.

If you had a non-competition or non-solicitation agreement in place with your former employer, this is also something that should be reviewed with legal counsel so that you can understand your rights and obligations going forward.

5.  Outplacement and a Resume

If your severance package includes outplacement assistance, you should verify whether or not it is being provided unconditionally.  If so, you should get in touch with the outplacement provider early on in the process.  Don’t hesitate to ask questions.  Will the meetings be confidential?  Will the outplacement provider be reporting back to the employer?  Does the outplacement provider have experience in your field?  If you are not satisfied with the answers, you should consider asking the employer to permit you to use a provider of your choice.  If the outplacement assistance is only being provided conditional on a signed release, you should discuss the best strategy with your legal counsel.

6.  Employment Insurance

In most cases, you should contact HRDC to file for Employment Insurance as soon as possible.  Even if you have been dismissed for misconduct or other “just cause,” you may still be entitled to EI.  Sometimes you may have to go through an appeal process to ensure your entitlement.  If you are being provided with severance, you may not receive any EI payments until two weeks after all of the severance payments have been paid.  Nevertheless, you should still register early.

7.  Health, Dental and Insurance

Your severance package may continue benefits for some period of time.  You should make sure that you and/or your family members, if applicable, are up to date with dental care, health prescriptions, eye glasses, and other items that may be covered by your extended dental plan.  If your life and/or disability insurance coverage are going to be terminated, you should consider getting quotes as quickly as possible.  In some cases, you may have 30 days to convert over your life insurance policy from a group policy to an individual policy.  This may be important if your medical tests are problematic.

8.  Be Forward Looking

Being dismissed is never easy.  This will usually involve a significant life change as you will now have to shift careers.  But most people go through this transition successfully.   You will need to do your best to stay positive, consider the types of roles that you envision yourself in and put together a personal transition plan.  You should make sure that your resume is professional, free of any errors, and eye catching.  When attending job interviews, you should remain positive and avoid bad mouthing your previous employer or boss.  You should consider dealing with the that fact that you were dismissed upfront and summarily.  Honesty will almost always be the best policy even though that does not mean telling potential employers about all of your weaknesses.

9.  Keep Track of Efforts

It will be helpful and often legally required for you to track your job search efforts.  Put together a spread sheet listing all activities. This should include formal and informal contacts.  Include lunch meetings, phone calls and discussions with friends, colleagues and former co-workers.  Track dates, people contacted, positions applied for, interviews and outcomes.  Keep this file up to date.  It may be important in proving “mitigation” if your severance entitlement has not been resolved quickly.  Or it may be required for EI purposes.  It will also be a useful part of tracking your personal progress.

10.  Carefully Consider any New Contract

When you have been offered a new position, you may well be given an offer letter or employment contract.  Don’t assume that the contact is a standard form or that it is non-negotiable even though you may really want to take the position and move on.  The proposed employment contract may limit or reduce your legal rights significantly.  Make sure you understand all of its terms properly.  You might consider having it reviewed by an employment lawyer.

These are some of the key points to consider. Certainly there are many career transition books that are quite helpful.  People often recommend What Color is Your Parachute?  Another favourite, on a lighter note, is Dr. Suess’ “Oh The Places You’ll Go.”  

There are also numerous job search websites and resources of every kind available on the internet.  Brush up your linked in profile with details of your work, references and endorsements.  Try to remain positive.  For many people, a dismissal may well lead to opportunities or new situations that might even be better for you that the role you have just left.