Can an Employee use a Dismissal Letter as A Bargaining Chip?

If you’ve ever been on the receiving end of a dismissal letter, you know the devastating effects it can have on one’s life; professionally, financially and personally. No one can deny the fallout a dismissal letter brings, however, not all is lost.  It may surprise you to know that certain types of dismissals can put the employee in the driver’s seat.

 

First of all, for a dismissal to be carried out both effectively and legally, an employer must make 2 things happen:

 

1) The employer must clearly communicate to the employee that his / her employment is ending.  A dismissal letter serves this purpose as it states beyond a shadow of doubt that the employee is being terminated. It may contain a financial offer or settlement of sorts.  However, such offers don’t usually equate to adequate notice or fair compensation when compared to the notice the employee would be otherwise entitled to.

 

2) Once a dismissal letter has been received by the employee, the termination is official and the employer now must provide adequate notice or acceptable pay in lieu of notice. If an employer doesn’t provide the agreed upon notice or compensation, and the employee takes legal action, the employer will probably be on the losing end of a potentially expensive lawsuit. Depending on the type of dismissal, if an employer makes an offer, the employee has the right to either accept, reject or re-negotiate as he /she sees fit.  This is the employee’s power position.

 

The Working Notice Dismissal Letter

 

An employee who receives a working notice dismissal is required to continue employment and fulfill his / her duties and as per usual until the notice period has expired. The terms in the working notice dismissal letter should be clearly stated and meet the following requirements:

 

    • Unless the employee’s employment contract states otherwise, working notice must equal reasonable notice. It must also be adequate notice according to law.

 

    • During the notice period, it must be feasible in that the employee can work and carry out his / her required tasks in the workplace.

 

    • The employee must also be allowed the opportunity (within reason) to seek alternative employment within the notice period.

 

This is the type of dismissal where the employer retains almost all of the control and the employee’s agreement isn’t usually necessary.  As long as the working notice provided is of the correct duration, this arrangement is generally a done deal.

 

The Salary Continuance Notice Dismissal Letter

 

Employers are required to give notice and the correct form of notice is working notice.  Employers who don’t want to provide notice can use the salary continuance notice to replace it. The day the dismissal letter is given is the same day the employee stops working. The employer will then make an offer to replace the required notice; either by continuing to pay the employee’s salary for a set period of time or by providing a single lump sum payment. If the employee agrees to the offer, the employer’s requirement to give notice ends.
However, employees should be careful with this kind of dismissal.  Salary continuance notice offers can be substantially less than the required notice (or what the employer offers to pay for it.) Although it’s seemingly distasteful, it can be a strategically sound move for an employer to make.  The employee who gets fired and kicked out of the workplace on the same day is extremely vulnerable and more likely to make an irrational decision based in fear. Far too many employees accept low-ball offers because they’re feeling desperate, confused and are unaware that they have a say in the matter.

 

The final type of dismissal letter is an immediate termination without notice, but with a lump sum payment offer to replace the correct notice. This is like the salary continuance notice dismissal in that the employee is fired the same day the letter is delivered and it includes an employer-proposed deal for financial compensation in lieu of notice.

 

How do you know if you should accept the terms of a dismissal? Whether its financial compensation or notice that you seek, a qualified employment lawyer can determine whether a deal should be accepted or rejected and can help you negotiate a more rewarding settlement. To make the best of your situation, please contact Employment Termination Lawyer, Bob Yeager.  

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