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Funeral for a Job

It’s another morning at work… through the elevator door that needs oil, past that slow-moving infernal clock, the faint smell of bitter coffee and carpet freshener wafting in from the kitchen, where the muffled laughter of office banter begins to overcome the soft hum of the computers. Your home away from home; warm, familiar, and secure. That is, until you see the posted note on your door politely requesting you to attend an unscheduled meeting in the boss’s office — you never saw it coming.

Sure, there had been sombre talk about belt tightening, budget cuts, and downsizing at head office, which you cautiously regarded with slightly more interest than the latest cancer statistics or a hurricane in Florida. After all, what about last year’s promotion, the nice Christmas bonus, and the recent report showing improvement over last year’s numbers that you carried around like a suit of armour?

None of that matters. Fifteen minutes later, you emerge from the meeting, a mass of aching and quivering emotion, the kind that puts a clamp on your heart and makes it hard to swallow. You are shocked, angry, frustrated, humiliated, and above all, rejected. The feeling of being on the outside looking in — unable to make sense of it all, like an unrequited love — sweeps over you. The ensuing apologies, best wishes for the future, and half-hearted assurances that you will land on your feet sound like white noise as you clean out your desk. The strange feeling of having been wounded by the very same people to whom you gleefully donated your heart and soul for the past 12 years intensifies.

In practice, you see it all: the father who uncharacteristically begins to physically discipline his kids, the mother who neglects her young children while she stares into space, the financial crisis, the breakdown in marital relations, the gambling, the person who walks into the shower and stays long after the hot water tank runs empty.

Recent studies have confirmed it many times — the loss of a job is the fourth most devastating event to an individual’s emotional well-being, coming just after the death of a child or parent, and divorce. The symptoms of reactive depression, which affect many who unexpectedly lose their employment — sleeplessness, anxiety, lack of appetite, indecision, and irritability — closely resemble those of a person in mourning.

For many, the initial shock and humiliation quickly ripens to a sense of exploitation and outrage. The desire to strike back at your former employer, who has callously ripped away your family’s economic security, is predictable and overwhelming.

The truth is, employment lawyers are ready and waiting to take on the role of avenging angel, always able to accommodate those people suffering financial misfortune who are willing to take the risk, at the appropriate price.

In Canada, there is no better time to sue one’s employer. Nearly 40 years of litigation has produced a definitive and reliable regime that has — for the most part — leaned heavily in favour of the wrongfully dismissed employee, who many consider to be the only truly innocent litigant. In fact, when an employee is dismissed without cause and for reasons of “restructuring”, “downsizing”, “lay-off,” or some other economic rationale, the issue is not whether the employee is entitled to compensation, but how much.

Depending on an employee’s age and position, the law has gone way beyond the old “rule of thumb” being one month’s severance per every year of service, plus commensurate employment benefits. The real test is based on an analysis of how long it’s going to take someone to become re-employed, given that person’s profile, skills, and the current job market.

Still and all, the legal response can only supply a temporary superficial band-aid resolution; there are always longer-lasting, far-reaching consequences for everyone concerned.

In reality, generous “heart balm” payments obtained through settlement or the courts are ill-suited to deal with the real agonizing effects of a sudden, unplanned termination of employment. Much like the near-impotence of the Family Law Courts in dealing with the raw emotions upon marital breakup, there is always the lack of self-worth, the insecurity, and the burning anger born out of rejection, which cannot be extinguished by monetary compensation.

For employers, the process is no picnic either. Whether it is the guilt-ridden principal of a family-run business reluctantly letting go of loyal staff that have been with the company since its inception, or a multi-national corporation being pilloried by the press after a massive cost-cutting “restructuring”, the experience is always painful. Most of the time, it is the sadness and empathy one person feels when giving someone else bad news. The result is a free-fall in morale, rifling through an organization like some new and virulent strain of COVID.

Then, there is the cost. Employers who prefer to ignore the recent developments in the law and proceed to handle the termination in an overly frugal, antiseptic manner, without regard to the emotional effects on the departing employee, can expect to pay tens of thousands of dollars to defend the inevitable lawsuits, usually to no avail. In the end, they will only throw more money at the problem until the employee goes away grumbling.

And therein lies the mystery that no one has conceived of a practical solution to this eternal sea of conflict … until now.

Here’s employment law world’s worst kept secret: it’s all about compensation for loss, you hapless rubes! It is well-established in our law that the employee is legally bound to exert all reasonable efforts to find a job. This is the so-called mitigation doctrine. The most effective defense that an employer can raise in any wrongful dismissal action is the fact that the departing employee has found a comparable job prior to the expiry of the assessed notice period.

At the same time, when the shock of the dismissal wears off for most employees, the natural instinct to find a replacement to the income they have just lost is overwhelming.

Given the above, the two parties should be walking down the same road with the same objectives: find the dismissed employee alternative comparable income. Unfortunately, in the current confrontational atmosphere, the system encourages the parties to begin to knock heads, often as a result of benign neglect, to address the mitigation issue in a meaningful way.

This is why the smartest and most benevolent employers will attempt to address the problem by engaging “relocation” counselling plans, often at a very high cost per individual terminated employee. While the services provided by even the best of these old-style companies (résumé preparation, provision of office contacts and equipment) are limited, it’s a step in the right direction. The reality is that in this day and age of home PCs and the internet, the efforts and expense are wasted. The employee’s perception is always one of tokenism and resentment for an obviously half-hearted gesture. Moreover, there is always the suspicion that the services are made available on the employer’s agenda to spy on the former employee and is not largely receptive to the dismissed employee’s real needs.

There is, however, a small cadre of new styles of employment transition firms currently operating in this space, especially in the post-COVID era. The pedigree of these firms is the Employment Assistance Program (EAP) concept, initially prevalent in the U.S. With a fresh approach, these firms provide traditional job search services with computer-generated résumé presentation, vocational skills assessment, financial advice, self-employment marketing, and most importantly, stress/crisis counselling on a one-to-one basis.

Most experts in the field agree that this is a truly effective way of addressing the problem faced by both parties in a direct way. It shows the employee that the company has not dropped them like unwanted baggage. It addresses (if not solves) the significant emotional turmoil caused by the termination. It provides a viable and effective means of obtaining alternate employment so that the employee can “mitigate” the loss, thereby reducing the severance the employer must pay. The costs for these small service agencies to the company are equal to, if not lower than, the traditional relocation counselling firms, and can be structured into the severance package on a tax-free basis. No longer does an employee have to walk away from the situation grumbling, albeit with a fistful of dollars.

On the fiscal side, courts have recently compensated employees for the costs of securing their own counselling and vocational assessment services. It is well-advised for employers to control these costs.

Lastly, to adopt these initiatives is hardly a touchy-feely gesture on the part of employers. All parties, including their lawyers, should take note of the Ontario Court of Appeal’s decision in Ahmad v. Proctor and Gamble. There, the Court expressly recognized the efforts made by the employer to assist the dismissed employee in finding an alternate job and conducting the termination in a humane and sensitive manner. The severance and ancillary costs that the employer would have had to bear were substantially reduced in the result, proving the investment in Employment Counselling Services was not only a fair approach to the problem, but the best business decision to be made in the circumstances.

The information contained in this article is provided for reference purposes only and is not to be interpreted in any way as legal advice. You should seek professional legal counsel for your specific employment situation or job loss.

by Bram A. Lecker, B.A., LLB. Barrister & Solicitor

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