Legal requirements for firing someone from a retail job in Ontario...
September 9, 2012 10:27 AM   Subscribe

I run a retail business in Toronto, Canada. It's an independently owned business--like a mom and pop store. I need to fire someone because he's incompetent and his presence actually makes more work for the other staff. I have emailed and texted with this staff member (who has worked with us for 13 months) regarding his considerable transgressions but we do not have "paperwork" or "forms" in the traditional sense. His work never improves. What exactly do I have to do to fire him without worrying about legal issues? Two weeks pay? Three? Does the firing need to be written in addition to verbal or is just verbal fine? What's the best way for me to cover my ass?

I have fired numerous staff in my time at this job (the business is about 40 years old), but this is the only one who I feel could be litigious.

I think that legally I have to give two weeks pay but I don't wish ill on him and have no problem giving 3 or 4. However, I'm worried that doing so gives him some sort of leg to stand on in the "obviously you need to give me more because you have no right to fire me" department. IE, being sympathetic to his situation makes it look like I'm in the wrong.

Any advice appreciated. Thanks!
posted by anonymous to Law & Government (6 answers total)
I am a lawyer in Ontario but not your lawyer, this is not legal advice, etc etc.

The Ministry of Labour outlines standards for termination pay (which is different from severance pay -- severance pay is only payable if you have employed this guy for more than 5 years). Basically, you can give someone notice of their termination, but if you don't want them to show up any more during that notice period, then you owe them termination pay, which is their regularly weekly salary times the number of weeks notice to which they were entitled.

Under the guidelines, you should give him at least two weeks written notice, and then you can make the decision to either have him work those two weeks or pay him two weeks salary in lieu. You cannot give him two weeks notice and then reduce his hours for those final two weeks.
posted by modernnomad at 10:41 AM on September 9, 2012 [4 favorites]

Check with your lawyer, stat! Did you keep any of those email? Those might be an acceptable form of 'paperwork'.

From what modernnomad writes, it looks like you will be required to pay him during the period between giving him notice and his termination date.... okay, check with your lawyer on how long that period has to be, but one thing I'd suggest is, as soon as you do give him that notice? Escort him off the property immediately, do NOT have him work those final weeks! Maybe I'm just an evil-minded suspicious cuss, but I could see someone doing your business active damage in that period.....

And if he's that bad, perhaps ask your lawyer to sit in on the termination meeting.
posted by easily confused at 1:50 PM on September 9, 2012 [2 favorites]

There is a difference too, between firing with cause, and firing without cause. If you fire him with cause, you need to have the paperwork to back it up. If you fire him without cause, you can just state that his services are no longer needed, and here's three weeks pay, and go away now. Talk to a lawyer.
posted by ThatCanadianGirl at 2:20 PM on September 9, 2012

I would get a lawyer to write up a release that he not sue the business for any reason in exchange for an EXTRA two weeks pay on top of the two weeks severance.
posted by JohnnyGunn at 5:07 PM on September 9, 2012

Do your best to keep it civil. If you go into it expecting him to be trouble, and it shows, then that is what you will get. You are not weakening your legal position by terminating him without cause and giving him the termination pay to which he is entitled.

If anything, it is terminating him with cause that will cause you grief. Don't give him any grounds to argue with you. Take the high road, and tell him you just don't need his services anymore.

Think of it like a divorce. Get legal advice, but don't bring the lawyer into it unless and until it becomes necessary. Coming at him with a "release" is just asking for it.
posted by rhombus at 8:29 PM on September 9, 2012

Email messages would count as paperwork in this context. I know a well informed & sensible employment lawyer in Toronto. If you would like a referral, memail me
posted by Heart_on_Sleeve at 6:48 PM on September 10, 2012

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