Navigating the workplace can be tricky, and employees sometimes make decisions that could cost them in the long run. Whether you’re dealing with an employment contract review, negotiating a severance package, or facing potential wrongful dismissal, the decisions you make during your employment can significantly impact your future.
As an experienced wrongful dismissal lawyer in Toronto, I’ve seen many common mistakes employees make. Unfortunately, many of these errors stem from misunderstandings about employment law and the role of HR. In this article, we discuss some of the common mistakes employees tend to make and how to avoid them.
1) Assuming the Employer’s HR Department is On Your Side and Unbiased
One of the most common mistakes employees make is thinking HR is on their side. However, HR’s main function is to protect the company, including by proactively seeking ways to prevent disputes, or actively responding to resolve workplace disputes in the employer’s favour, as well as to minimize risks to the employer, particularly when handling severance package negotiations, constructive dismissal claims, or wrongful dismissal claims. After all, they are hired, employed and paid by the company to fulfill these functions.
Therefore, if you are an employee involved in a workplace disputes, under a workplace investigation or facing potential termination, it is absolutely essential to understand that HR’s goal is often to protect the company’s interests – not yours – and to quickly get an employment lawyer consultation. Among other things, this will ensures that you are aware of your rights and protects you from unintentionally weakening your position. In a constructive dismissal case, my client had mistakenly confided in a colleague in the company’s HR department when discussing significant changes in her job, as well as ongoing workplace harassment. Soon after, in the context of pursuing a severance package to resolve the employment dispute, the employer’s counsel then used the context of the conversation to allege the employee “had one foot out the door” by requesting a severance package.
2) Quickly Signing an Employment Contract or Severance Package
When you’re hired, the idea of signing an employment contract might seem like a positive step toward security, or might seem like the only option in order to avoid jeopardizing the job opportunity. But for most employees, signing an employment contract can be a huge mistake, especially without first consulting with an experienced employment lawyer for an employment contract review. Many contracts are drafted precisely to remove or minimize your employee rights that you would otherwise have under Ontario employment law. These employment contracts often limit your right to receive your full severance package, impose restrictive non-compete clauses (including non-competition clauses and intellectual property agreements), or make it difficult for you to challenge a future wrongful dismissal or constructive dismissal.
Instead of requesting an employment contract, consider seeking an employment contract review from a lawyer to understand the legal implications. Contracts are designed to benefit the employer, so it’s crucial to ensure you’re not unintentionally agreeing to terms that work against you.
3) Accepting an Employer’s Initial Severance Package Offer
When non-unionized employees are terminated without cause or laid off, it is rare for their employer to offer a fair severance package right away. In Ontario, an employee’s severance package can amount to up to 24 months’ of income (or in exceptional cases, possibly more). In many cases, employers will not provide employees with their severance entitlements voluntarily. Instead, they look for ways to delay the process, in hopes the employee will simply give up by accepting the original severance package (usually a low-ball offer), or otherwise secure a new job that could legally justify an employer provide the employee with lower severance pay.
Despite common misconceptions, or an employer’s pressure tactics by insisting the employee sign the termination letter by a specific date (usually 7 days after the notice of termination), employees are not under any legal duty to sign accept or sign an employer’s initial severance package. Put simply, an employer cannot legally force an employee to accept any offer before leaving a termination meeting or a few days after receiving it.
At Bune Law, an experienced Ontario employment lawyer can help you determine if you are entitled to more than a severance package. Since every employment matter is unique beyond simply the termination of employment, there could also be other issues that need to be addressed during severance negotiations, such as unfair conduct during the termination process, workplace harassment or discrimination. For example, during severance negotiations, if an employment lawyer concludes that a 22-year employee at a manufacturing company in Toronto was fired due to his health issues (or disability), the employee may be entitled to bring a wrongful dismissal claim as well as a discrimination claim.
4) Attempting to Negotiate Severance on Your Own
Many employees make the mistake of negotiating their own severance package, especially if the company has made an offer. However, without legal expertise, it’s easy to make mistakes that could cost you. Employers are aware that most employees don’t understand the intricacies of severance package negotiations, so they often offer lower settlements, assuming you won’t seek legal counsel.
Hiring an experienced wrongful dismissal lawyer can help ensure that your severance is fair and comprehensive. An Ontario employment lawyer will know exactly what to ask for—things you might not even think about—and will be able to negotiate the best possible terms on your behalf.
Therefore, generally speaking, most employees are not in the best position to negotiate their own severance package without the guidance and expertise of an employment lawyer, as they risk putting themselves in a worse-off position. For a variety of reasons, negotiating severance on your own can be challenging due to the complexities of Ontario employment law. Likewise, employees doing so may be facing a significant uphill battle, since employers are usually equipped with their own employment lawyers who advise them to offer less favourable terms.
5) Not Responding to or Challenging a Performance Improvement Plan
When an employee in Ontario does not respond to or challenge a Performance Improvement Plan (PIP) in a timely, effective and professional manner, the employer may use this as part of their efforts to build a case for termination. Most importantly, in the event of a wrongful dismissal claim, the employer can use the employee’s failure to respond to or engage with the PIP as evidence that the employee was given a fair opportunity to improve. This could help employers argue that they acted reasonably and followed appropriate procedures before making the decision to terminate.
In other words, employees should generally challenge or respond to an employer’s Performance Improvement Plan (PIP) – with the help of an employment lawyer – because it can be a tool for the employer to build a case for termination. By addressing the PIP, the employee can document their side, highlight any inconsistencies, and ensure that the employer’s expectations are clear and fair. Failing to respond may allow the employer to create a false pretext for termination or discipline, which could undermine the employee’s defence if legal action becomes necessary. Challenging the PIP also helps protect the employee’s rights and ensures they are treated fairly.
A termination of employment is a difficult and confusing time, especially when it comes to reviewing a severance package, negotiating a severance package, or understanding the impact on an employees’ rights when it comes to changing an employment contract. Therefore, in a wrongful termination of employment, it is important for employees to consult with an employment lawyer for a severance package review to understand the impact of wrongful dismissal on pension plans. If you are an employer or employee needing to speak with an experienced Ontario wrongful dismissal lawyer to discuss your options and next steps on how to deal with workplace issues, call Bune Law, employment law firm in Toronto. You will review and get guidance on your severance package before you agree to sign any termination documents, and help ensure that your severance package is fair and reasonable.
