In the realm of employment law, where precision and clarity can make or break a case, the choice of words used to terminate an employee plays a pivotal role. Ambiguity and confusion surrounding the termination process can lead to legal battles, as illustrated by several recent Alberta cases: Northern Air Charter (PR) Inc v Dunbar, 2023 ABKB 171, Ayalew v The Council for the Advancement of African Canadians in Alberta 2023 ABKB 113, Plotnikoff v Associated Engineering Alberta Ltd., 2023 ABCJ 200, and Buchanan v Weiss-Johnson Sheet Metal Ltd., 2023 ABCJ 207. Drawing insights from these cases will make plain the significance of clarity when it comes to ending an employment relationship.
Northern Air Charter (PR) Inc v Dunbar, 2023 ABKB 171
In Dunbar, Mr. Dunbar worked for the Employer for approximately two years when he was informed that he was being laid off, effective immediately. Two months later, Mr Dunbar was asked to return to work, to which he did not comply. The court ultimately ruled that the plaintiff’s employment was outright terminated, not simply a layoff. The Plaintiff was awarded five months of reasonable notice (severance), later upheld on appeal. The case underscores the need for clarity in communicating the intention behind an employee’s departure.
Even though the words used were “lay-off” rather than “termination,” the steps taken by the Employer were consistent with a termination rather than a lay-off. The Employer’s “actions communicated that his employment was at an end. It had him deliver his access cards and keys. It locked him out of the website. It told other employees he was not employed with Northern Air. It wished him the best in his future endeavours. No palpable and overriding error was made by the trial judge in viewing these actions as terminating Mr. Dunbar’s employment.”[1] This situation demonstrates that clarity cannot stop at terminology alone.
The decision in Dunbar underscores the critical need for employers to exercise precision in both their communication and actions when terminating an employee, as a court may deem it a termination of employment even if explicit termination language is absent. Moreover, Dunbar serves as a crucial reminder of the importance of crafting comprehensive employment agreements that meticulously outline the employment terms an employer intends to rely on in the future.
Ayalew v The Council for the Advancement of African Canadians in Alberta 2023 ABKB 113
The Ayalew case involved concerns about Mr. Ayalew’s behaviour, including allegations of harassment, discrimination, and bullying while in his role as the executive director of The Council for the Advancement of African Canadians in Alberta.[2] The Employer placed Mr Ayalew on administrative leave and initiated an investigation regarding these behaviours. After reviewing the investigator information, the defendant terminated the plaintiff “without cause” and offered termination pay. Mr Ayalew declined the offer and sued for wrongful dismissal. The Employer later claimed they had mistakenly terminated the plaintiff without just cause and had new information supporting a “with-cause” dismissal.[3] The court ruled that an employer cannot change from a “without cause” to a “with cause” termination, highlighting the need for consistency in termination decisions.
This case provides valuable guidance. Employers should exercise caution and conduct a thorough assessment when contemplating the termination of an employee on a “without cause” basis, especially when circumstances may warrant a “with cause” dismissal. To ensure consistency and clarity in situations such as this, the employer must clearly state in the termination letter that the without-cause termination does not prejudice the employer’s position regarding the potential existence of just cause for termination.
Plotnikoff v Associated Engineering Alberta Ltd., 2023 ABCJ 200
In Plotnikoff, Mr. Plotnikoff was terminated without cause after nearly ten years of employment. The Employer paid the minimum notice required by the Alberta Employment Standards Code but made no further payment toward reasonable notice of termination. The Employer argued that the employment contract only required payment of the statutory minimum. The Court, however, concluded that the contract did not clearly and unambiguously limit the plaintiff’s common law rights and calculated a reasonable notice period of ten months. This case accentuates the importance of explicit terms in employment contracts.
The judge notably referred to Bryant v Parkland School Division, 2022 ABCA 220, where the Court of Appeal commented that “employment contracts are presumed to contain an implied term requiring an employer to provide reasonable common law notice of dismissal: … While it is open to an employer to include language in the contract rebutting that presumption, the language must be ‘clear and unambiguous’ to be effective. Courts have also said the contract must contain language that is ‘clear and unequivocal’, or that meets a requirement for a ‘high level of clarity’, to extinguish the common law right to reasonable notice: …”[4] This emphasis on the use of clear language and reducing ambiguity is critical for employers to note.
Buchanan v Weiss-Johnson Sheet Metal Ltd., 2023 ABCJ 207
In Buchanan v Weiss-Johnson Sheet Metal Ltd., the Plaintiff sued the defendant for wrongful dismissal. The Defendant claimed that the termination was for just cause, yet it was unclear from the Dispute Note and the Termination Letter why the Plaintiff’s employment was terminated. The court concluded that there was no just cause for termination, signifying the need for employers to provide clear and specific reasons for dismissal. The judge made the following statement:
“The Defendant has not made clear just what the “misconduct” was that caused it to terminate the Plaintiff’s employment. I have already set this out above. The Defendant alleged it was a failure by the Plaintiff to follow the law, but the Defendant has not proven just what the “law” was that the Plaintiff failed to follow. The Defendant also alleged it was due to the Plaintiff’s insubordination, but I have determined that there was no insubordination. The Defendant also alleged that it was due to the Plaintiff’s failure to follow company policy, but I have determined that the company policy was unclear, not adequately disseminated to its employees, and employees were not made aware of what specific disciplinary measures would follow a breach of company policy… Furthermore, the evidence of the Defendant was that infractions of any masking requirement would be firstly to give an employee a verbal warning and thereafter, for a further infraction, a written warning. Neither of those were given to the Plaintiff. Yet further, neither failure to follow the law nor failure to follow company policy was set out in the Termination Letter as reasons for the Plaintiff’s dismissal. The Defendant also alleged it was due to the Plaintiff having a confrontation with [the President of the Defendant] but I have determined that there was no confrontation. The Defendant also alleged it was due to the Plaintiff having an overall poor attitude but there was no evidence at all of that.”[5]
The Employer was unsuccessful in this case, and it is evident that the lack of clarity and consistency surrounding the employee’s termination solidified the verdict.
Discussion
Clarity is critically important when terminating an employee for several key reasons:
- Legal Compliance and Consistency: Using unambiguous language in termination documents helps employers comply with employment laws and regulations. Ambiguity can lead to legal disputes. Therefore, it is essential to convey the grounds for termination. Consistent and well-documented communication is vital.
- Preserving Employee Rights: Employees have certain legal rights and entitlements, such as notice or severance pay. Failing to communicate these rights explicitly can lead to misunderstandings and disputes. Clear communication helps ensure employees are aware of their rights.
- Enhancing Employee Dignity: Termination is an emotional and often distressing event for the employee. Clear communication can help preserve the dignity of the departing employee by providing them with an understanding of why they are being terminated.
- Avoiding Reputational Damage: Ambiguous or poorly communicated terminations can harm an employer’s reputation. Clear and respectful communication can mitigate the risk of negative reviews or social media backlash from disgruntled employees.
- Preserving Company Culture: Terminations can impact the morale and culture of the workplace. Clear and respectful communication can help employees understand that the termination was handled fairly and professionally.
The cases above demonstrate that inconsistent messages or vague language can undermine an employer’s position in legal proceedings. To avoid these situations, clarity must be highlighted as an essential factor.
Conclusion
These cases, underscore the critical importance of using precise and unambiguous language when terminating an employee. Ambiguity can lead to legal disputes, financial repercussions, and prolonged litigation. To avoid these pitfalls, employers and employees must ensure that the language used in termination letters and agreements clearly communicates the reasons and terms of the dismissal. In summary, clarity in the termination process is essential for legal compliance, risk mitigation, preserving employee rights and dignity, maintaining a positive corporate image, and supporting a smooth transition for all parties involved. It is in the best interests of both employers and employees to ensure that termination-related communication is transparent and precise. In the world of employment law, clarity truly is king, and a well-articulated termination can save both parties a great deal of time, stress, and legal fees.
By Kiera Brown
Note: This article provides general commentary and is in no way intended to replace the need to consult with a legal professional concerning the specific circumstances of your situation. This article should not be construed or relied upon as legal advice.
[1] Northern Air Charter (PR) Inc v Dunbar, 2023 ABKB 171 (CanLII), at para 51
[2] Ayalew v The Council for the Advancement of African Canadians in Alberta, 2023 ABKB 113 (CanLII), at para 43
[3] ibid
[4] Plotnikoff v Associated Engineering Alberta Ltd., 2023 ABCJ 200 (CanLII), at para 5
[5] Buchanan v Weiss-Johnson Sheet Metal Ltd, 2023 ABCJ 207 (CanLII), at para 71
