The legal aspect: before termination
Before proceeding, you must ensure the legitimacy of the termination. To do this, you must first distinguish between a layoff and a dismissal. Although the two terms are often used interchangeably, they are not synonymous.
In the case of a layoff, the employer permanently ends employment because they no longer require the employee's services for organizational or economic reasons. In this case, it is not related to the employee's performance or behavior.
These reasons may include:
- Financial difficulties leading to staff reduction.
- Elimination of a position or internal reorganization.
- Department closure.
- Automation or technological transformation making certain positions non-essential.
In the case of a dismissal, the end of employment is related to the employee's performance or behavior. This may include inability to meet job requirements, repeated shortcomings, or disciplinary reasons. In these circumstances, it is essential to document problematic behaviors as soon as they appear and not just before termination (warnings, corrective measures, exchanges, employee responses).
Record the facts, warnings, proposed corrective measures, and employee responses. This traceability increases your chances of demonstrating a dismissal for cause in case of dispute. A poorly prepared dismissal may be deemed unjustified by the Administrative Labor Tribunal, especially if the employer has not applied a fair, proportionate, and progressive sanction process.
Before proceeding, ensure that there is no protected situation (e.g., maternity leave, illness, CNESST complaint, accommodation obligation related to health or disability).
Depending on the sector (federal or provincial), remedies and obligations may vary. For example, an employee under federal jurisdiction will fall under the Canada Labor Code, while an employee in Quebec will fall under the Act respecting labor standards or applicable provincial law.
The human aspect: during termination
Even if you have a valid reason and the right to terminate an individual, it is never easy. It carries risks, both emotionally and organizationally. As uncomfortable as the moment is for you, it is often even more so for the person receiving the bad news.
To show empathy and respect, make the announcement in person in a confidential setting. Preferably, be in the presence of a witness if possible (HR or another manager). Briefly explain the reasons for the decision and answer questions without going into detail.
Prepare yourself: be clear, factual, and concise. Avoid vague wording, emotional justifications, or personal comments.
If the relationship remains positive and you are comfortable doing so, you may offer a neutral and professional reference letter.
Finally, consider conducting an exit interview. This allows you to end the employment relationship with dignity and gather useful feedback.
Do not forget to communicate with the remaining team: a poorly managed termination can create anxiety and harm engagement. Reassure your employees by explaining the situation in general terms while respecting confidentiality.
The administrative aspect: after termination
At the meeting, ask the employee to return company property (e.g., computer, phone, keys, etc.) and ensure that their IT access is revoked once the meeting is over. Then, focus on the following administrative formalities:
Notice of termination
The notice of termination is a written document given to the employee in cases of layoff, meaning when the end of employment is not related to fault or misconduct. It indicates the end date and complies with the notice periods provided by law, based on the individual's years of service. The employer may choose to pay compensation equivalent to the notice period instead of worked notice.
The length of this notice varies according to years of service:
- Less than 3 months of employment: No notice required
- 3 to 12 months of employment: 1 week of notice
- 1 to 5 years of employment: 2 weeks of notice
- 5 to 10 years of employment: 4 weeks of notice
- 10 years or more of employment: 8 weeks of notice
Record of employment
As soon as pay stops, the company must issue the Record of Employment (ROE):
- Electronic format: within 5 calendar days following the end of the relevant pay period.
- Paper format: within 5 calendar days following the actual termination.
Consult the Service Canada website for more details.
Amounts due
At termination or the next payroll, you must pay all amounts owed to the employee. This includes regular salary, overtime worked, bonuses due, and accrued vacation (4 or 6%).
Ensure calculations are accurate and amounts are paid within prescribed deadlines.
Work certificate
At the employee's request, you must provide a work certificate. This document contains the employer's name and address, details the worker's duties and length of employment, without performance evaluation or subjective comments. It is not equivalent to a reference letter.
Release: securing the end of employment
The release is a strategic tool, particularly useful in cases of dismissal, layoff with enhanced compensation, or negotiated termination. It confirms that the employee has received all amounts owed and waives any future claims related to the end of employment. It protects the employer against subsequent claims in exchange for fair and transparent compensation.
For the release to be valid, certain conditions must be met:
- The employee must sign freely, without pressure or coercion.
- They must have had time to consult a lawyer or legal advisor, if desired.
- The content must be clear, precise, and free of abusive clauses.
In conclusion
Ending employment requires as much diplomacy as rigor. By combining respect, proper documentation, and legal compliance, you will minimize the risk of disputes and preserve your organization's reputation.
At Bedard Human Resources, we can support you through all stages related to termination, whether it is a layoff, dismissal, or contract termination. Contact Stephane Pepin for more information about our HR consulting services.
Legal notice
This text is provided for informational purposes only and does not constitute legal advice. For any specific situation, consult a legal advisor or qualified HR professional.
