Ask the ExpertWorking Out Notice Period
hri_Admin Staff asked 3 years ago

I am in Manitoba. I am wondering if you can let me know if you see any issues with the following scenario. I recognize it may be pertinent to get legal counsel as well in this situation.

Terminating an employee, but because the issues have been performance based and not behavioral in nature (although still past the point of reconciling), giving the employee the option of working for a portion of the notice period, and letting staff internally know that it was this employees decision to leave ( in order to spare her some embarassment and humiliation of being escorted out of the office). We do not believe this individual is a security risk and feel that if she were to work a few days of the notice period (although we would pay her more than employment standards states) to give her a few days to wrap things up and leave with dignity.

I am wondering a few specific things:
1. Can the employee refuse to work those few days? (I realize she could just call in sick everyday or do something of the like). Or rather, can we actually ask someone to work that time rather than paying them out?
2. We would ask the employee if she would prefer that instead of us communicating to other employees that “so and so is no longer working for us” that we would instead communicate that she has decided to leave. If she does not want this it is fine, but if she does, we would do this for her in order to ‘save face’. Do you see issues with us even presenting that option to her?
3. Any other red flags you can see that we should think about in this process?


1 Answers
Glenn Demby Staff answered 3 years ago

OK, we’re cool, this is not legal counsel.

  1. I don’t think that the employee’s duty to come to work would be in any way diminished because she’s working during the notice period. But our payroll god, Alan McEwen may know something I don’t, so I’m forwarding the Q to him.
  2. The fact that you’re even asking this Q indicates that you recognize the dangers of Wallace damages, i.e., aggravated damages when a termination is not only wrongful but carried out in bad faith in a way that causes the employee to suffer mental distress. Bravo! You clearly are behaving with sensitivity, respect and concern for the employee’s dignity–and that’s more than half the battle as far as fending off Wallace damages is concerned.
  3. The next Q is whether the strategy you’re proposing will actually work in helping the employee save face. If it were me, I’d definitely appreciate it if an employer offered to make the termination look voluntary to spare me embarrassment. I think most people would. But I just don’t know enough about THIS individual or the situation to judge whether it will work or backfire. That’s a personal judgment you and your colleagues will have to make.            Hope that helps and I’ll let u know when I hear back from Alan. Glenn