Labor & Employment Law

Detailed Termination Letters or Bare Bones?

By Michael Fitzgibbon

I was recently asked whether I believed in providing employees with detailed for cause termination letters.  People will differ on this and, frankly, my approach has changed somewhat over the years.

There was a time when I ascribed to a "bare bones" sort of letter.  But that has changed.   

I'll set out some general thoughts on termination letters.  I'm limiting my comments to for just cause situations. 

I assume, when drafting these letters, that they will, at some point, end up in front of some third party adjudicator (whether an arbitrator, judge or other decision maker).  As a starting point, I draft with that in mind, and I recommend that you do as well. 

There are two points that come out of this:

1. Because this will end up in front of an adjudicator (or you should assume it will), you should fully investigate the allegation(s) and ensure that you have a clear picture of what occurred before putting pen to paper.  If you're not sure, get sure.  If you need to suspend pending investigation, do so (here you'll need to consider whether this is with pay or without pay, and there's some case law on this that you should get advice on before committing to one course or the other - see for example Cabiakman and also my earlier post #1 and post #2).  You don't want to be criticized for conducting a rushed or biased investigation (see my article for the Canadian Bar Association entitled How a Rushed Investigation Can Double Your Trouble)
2. Once the investigation is complete, and you've got an accurate understanding of what took place and interviewed all those people that you need to interview, you're now ready to draft the letter.  This is not a work of fiction nor is it an opportunity to exercise your creative writing prowess.  It's a factual statement of what happened.  The recitation of the facts should lead any reasonable person reading the letter to the conclusion that the employer had no option but to terminate for just cause.  The last line ("Based on all of this, your employment is terminated for just cause") is almost unnecessary.  The facts should lead to that conclusion.  If you can't prove it, don't put it in the letter.

The letter of termination, therefore, provides the employer with an opportunity to influence or persuade the adjudicator before even saying a single word.  It is an opportunity that is often lost because it is not considered as such.  Let's look at two termination letter examples:

Example #1 - "Your employment is terminated for just cause by reason of your misconduct on November 5, 2007."

This is a missed opportunity.  What if any impression is the adjudicator left with?  The adjudicator is left with questions (many questions) and really no idea of what happened.   

Example #2 - "On November 5, 2007 you engaged in a verbal altercation and physically threatened your supervisor.  This took place in the middle of the plant, in full view of other co-workers and was overhead, and commented on, by customers who were being given a tour of the plant at the time.  Your co-workers had to physically remove you from the workplace.  As you were leaving you yelled, for all to hear - "I know where you live ***hole.  I'm going to kick your head in!"

Needless to say this conduct, which we have determined following an exhaustive investigation, which included a meeting with all witnesses and with you, was completely unprovoked.  Furthermore, it is threatening, unacceptable and contrary to our workplace violence policy a copy of which was most recently provided to you on September 10, 2007.

Compounding this misconduct is the fact that you had previously been warned for similar behavior.  Specifically, on September 10, 2007 you had an altercation with another supervisor and were issued a three (3) day suspension with pay to consider your future with the company.  You were warned that this conduct was insubordinate and would not be tolerated.  You were told that further behaviour of this nature would result in further discipline.  You will recall that the company put at your disposal an anger management program.  You declined this offer, and in fact found our offering it to be "insulting".

Your employment with the company is terminated effective immediately for just cause....

Example #2 is allot more persuasive.  It is factual and objective and, after reading the last line, most people would be left saying "but of course". 

Another reason you might want to get into more detail, especially in a non-unionized for cause letter, is because the employee, when he or she retains a lawyer (which also should be assumed), might not give the full story (or the other side of the story).  The letter (which the lawyer should ask to see), ensures that a summary of the employer's position is available and will require the lawyer to ask a number of pointed questions of his or her client.  There might be another side to the story but, at least by having conducted a thorough investigation, the employer will be aware of that story.

People may be of a different view on all of this, and, frankly, I've been known, in an appropriate case, to take a more "bare bones" approach to these letters. 

Full post as published by Thoughts from a Management Lawyer on November 05, 2007 (boomark / email).