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December 13, 2012

Terminate Before or After the Holidays?

This is a tough question and one that I was reminded of the other day when driving into work.  I found an article online when I got into the office the  headline of which reads as follows:

Ninety-four employees of … were let go last week as the company permanently cut the jobs as shut down two of the Dain Ave. plant’s mills.

The announcer on the radio station I was listening to criticized the employer for taking this action before the holidays.

But, in reality, there is no easy answer to the termination timing question when the holidays loom on the horizon.

There may be a host of reasons why “now” (pre-holiday) is the right time, and waiting is not a viable option.

For example, there may be business considerations that dictate the timing.  In certain cases, where the infraction is of such a serious nature that continued employment through the holidays is simply not a realistic alternative, the termination must pre-date the holidays and take immediate effect.

However, there are times where waiting until after the holidays is a possibility, and that’s where tough decisions have to be made.

This is one of those “damned if you do and damned if you don’t” situations,

I have been faced with letters from plaintiff counsel chastising my client whether they terminate before or after the holiday.

So what do you do?

Obviously, terminations are never easy (ad they shouldn’t be).  They impact on people and their families and should be carried out, in all cases, sensitively, professionally and with due regard to the fact that these decisions have broad implications.

There is no easy or right answer to the timing question, however it is critical that the timing issues be considered. At least two questions must be considered or at least thought through at this time of year:

  1. Can the termination be delayed until after the holidays (for example, where there are no business considerations or legal risks (eg. condonation) associated with delaying the decision)?
  2. If so, should the decision be delayed?

In the end, where the decision can be delayed into the New Year, it may be optically more palatable if the timing is raised and aspersions cast on the employer, to delay the implementation of the termination until the holidays are over.  At least then the employer can say “We considered the timing, did not want to impact the employees’ holiday, and instead continued to pay the employee, when this wasn’t necessary for our business.  We thought we were doing the right thing for the employee, and if we’re to be criticized, it’s for being too considerate of the situation…”.

But, again, the decision might not be one that can be delayed and, where that is the case, delaying has risks associated with it.

Again, there are no hard and fast rules here, and no easy or right answers.  The point here is not to come up with a silver bullet, but to identify the issue and emphasize the need for employer to turn its mind to the timing question, before rushing in one direction or another.

These blog articles are published by Watershed LLP and provide general information only, and readers should not rely on them for legal advice or opinion.  Readers who need advice or assistance with a matter should contact a lawyer directly.