The Scathing Missive and Canadian Employment Law: Good Idea?

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The Scathing Missive and Canadian Employment Law: Good Idea?

This article examines whether it is a good idea for Canadian employees to send a scathing missive on their way out the door - and how it might affect severance entitlements.

Many of us would love to leave an unpleasant job with a real bang.  For some, it might be a scathing email sent around to the entire company or even the whole client database.  For others, it might just be a strongly worded missive about the boss sent to a few of his or her superiors or even the President and CEO.  But what about an Op-Ed piece in the New York Times, read by millions of readers?  There can’t be any sweeter revenge than a widely distributed newspaper article attacking the company, its culture and some of its most senior executives.

But although some of us would love to do what Greg Smith did on March 14, 2012 (NY Times Op Ed “Why I am Leaving Goldman Sachs”), is this useful from a Canadian employment law perspective?  Usually, the answer is no.

For starters, many departing employees leave as a result of a restructuring, downsizing or lay-off.  Others leave with a reasonable case for constructive dismissal and are hoping to get a decent severance package.   In either of these situations, the severance negotiations have often not yet been completed by the date of departure.  Not surprisingly, angry and upset employers often become less interested in providing generous financial compensation.   A departing employee who sends this type of letter or memo only to a handful of very senior company officials may well have significant leverage.  Particularly if the complaints are perceived as meritorious.  But once the letter has been publicized, the leverage is often diminished.

This type of action is also not likely to ingratiate many potential employers.  If an 11 year, senior employee, is willing to attack his former employer so vigorously and so publicly, what will he do to us, might be the line of thinking.  The world is often smaller than we might have thought.  Many employers are not interested in hiring a perceived trouble maker who is so willing to attack his or her former teammates.

Of course there may well be competitors interested in someone who is so willing to help damage a rival organization.  That new organization may even be willing to indemnify the new hire against any potential lawsuits whether for defamation, slander or other tortuous conduct.  Maybe they will also pay a signing bonus to make up for lost severance.  But in my experience, very few departing employees are so sought after that this type of letter would assist their post-employment career.

Perhaps, for Greg Smith, his self-described lofty integrity may well facilitate the success of his next position, if it is perceived as believable.  But in Canada, far too often, widespread attacks on employers by departing employees tend to harm the employee as much, if not more, than the employer.

There are clearly circumstances in which people should act and might even have a responsibility to do so. For example, if a person has been the victim of harassing or discriminatory conduct; or has witnessed or been asked to participate in illegal or inappropriate conduct; or is being subjected to treatment that would constitute constructive dismissal.  In all of these cases, it would make sense to make vigorous legal demands, which could even lead to a public lawsuit and other legal proceedings.  But complaints about a company’s leadership, direction and culture are of a different nature and might lead readers to question the real motives for the complaint.

For Canadians who are financially independent and are not at all concerned about what they might do next or whether they even need to work, this kind of letter can be fun to write and very cathartic.  But for the vast majority who are not in that position, the downside of this type of approach will often outweigh the fleeting sense of satisfaction.  As an employment lawyer, I would have to suggest that departing employees think very carefully and perhaps even get legal advice before hitting the send button on that scathing email, memo or letter.


  1. David Nitkin says:

    This opinion piece draws into sharp contrast the difference between legal and ethical advice. An ethicist would have a very different opinion on this public exit action, using some of the same criteria like future personal employability, complaint retaliation, and the development of a healthier workplace. In moral terms, the last person you’d want to consult might be a lawyer.

    • Tom Malcolmson says:

      I don’t agree with David’s response. Consulting a lawyer in no way limits your moral options. I would expect a lawyer to help you make decisions that defend your rights and that are fully compatible with your moral values.

      If you are going to blow the whistle on an employer who is doing something wrong, there is no point in doing it in a way that puts them in a stronger position and might even end up saving them from having to pay you severance.

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