There are plenty of things HR professionals should avoid when dismissing an employee and one recent case from B.C. is serving as the perfect reminder – simple pitfalls can still catch seasoned employers out.
Helicopter mechanic D’arcy Wayne Saliken was dismissed – allegedly for cause – after 15 months employment with Alpine Aerotech Limited Partnership.
On the day of dismissal, Saliken was called into an office where he was presented with termination documents, including a release. The 54-year-old was then pressured to sign and agreed after 15 minutes.
The court found that Saliken – who was educated to a grade 11 standard and had received much of his education on-the-job – may have read the termination documents but he did not understand them and certainly didn’t comprehend the ramifications of signing the release.
“The atmosphere during the termination meeting was tense and awkward. The plaintiff was in shock he was being terminated...To hold the plaintiff to the termination documents in the circumstances would be unconscionable,” stated the Court.
“Neither Mr. Pink nor Mr. Davis explained any of the termination documents to the plaintiff...It was a grossly unfair and improvident transaction. The plaintiff received no legal or other suitable advice,” it continued.
“Ultimately, the circumstances and resulting stress of the termination resulted in an imbalance in bargaining power and the defendant knowingly took advantage of the plaintiff's vulnerability to its advantage…The offer contained in the termination documents was presented in a way that was directed to getting the plaintiff to accept, and in a manner set to take advantage of the plaintiff's vulnerability.”
Alberta-based Saliken was eventually awarded a total of $28,985 in lieu of notice.
Benjamin Abernant, a partner with McCarthy Tétrault, says the case is a good reminder of a classic lesson.
“Never let an employee sign the release at the termination meeting. Never ever,” he stressed. “While it can be tempting, just don't do it.”
Abernant says no matter what the circumstances – even if the employee is clearly keen to sign a generous package and fully understands the implications – HR should still enforce a waiting period.
“Don't be tempted,” he advised. “Our usual advice is to give the employee between 1-2 weeks to consider the severance package and, barring exceptional circumstances, not accept the returned release for at least a few days after the termination meeting.”
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