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NINE TO FIVE

Does good performance give me leverage in severance negotiations? Add to ...

THE QUESTION

I worked for 12 years at my company and never got a bad review until being moved into a new group, where management and I did not get along. They put me on a performance-improvement plan (PIP), and I told co-workers that I had to look for a new job in case this didn’t work out, and that I’d received one offer already (withdrawn the next day, due to a hiring freeze).

Well, my first PIP review noted that I’d been “boastful about having several job offers,” a way of questioning my commitment to turning things around.

I hate this job, but with three kids to support, I need to stay until finding another. Given this scenario, if I am terminated, do I have leverage for my 24 weeks of severance? Should I go to HR, lay out the issue, and say this isn't a good fit for me?

THE FIRST ANSWER

George Cottrelle

Partner, Keel Cottrelle LLP, Toronto

By placing you on a performance-improvement plan, your employer is taking steps to improve performance, but also to document justification for potential dismissal.

Failure to meet the requirements of a PIP does not create a right to dismiss without cause. The fact that you had good performance for 12 years will make it difficult to terminate your employment for just cause, for unsatisfactory performance alone.

While you could have been more discreet in advising co-workers of job offers, this does not give rise to grounds for termination. The fact that you hate your job may be reflected in your workplace performance and conduct. Poor performance, coupled with other workplace issues, may provide your employer with a stronger case for just-cause termination, in certain circumstances, but not those you provided.

Your entitlement to 24-weeks’ severance exceeds applicable statutory minimums in Canada, but after 12 years of employment, would be a minimum common-law entitlement. If your employment is terminated for failure to meet the requirements of the PIP, you would still have a right to the statutory minimum entitlements, plus reasonable common-law notice, although the fact that you have a job offer could affect the length of the notice period. You could approach HR to discuss a termination package, but there is no obligation to offer one.

THE SECOND ANSWER

Julie Labrie

President, BlueSky Personnel Solutions, Toronto

Putting an employee on a performance plan is often a company’s first step toward officially documenting its case for future termination, if performance doesn’t progress. Therefore, your employer discovering that you are job hunting won’t necessarily signal immediate termination.

Since you don’t like your job, your best bet at this point is to aggressively continue your job search, while keeping your head down at work, because you are always more attractive to companies when employed.

Regarding a severance package, HR has no obligation to provide you with one when you are voluntarily asking for it. My colleagues in employment law advise that through this action you may be voluntarily resigning in the eyes of the law.

So empower yourself with information. Consult an employment lawyer in your province to gauge how much severance you may be entitled to by law and how the fact that you have a potential job offer waiting for you may affect the amount of your severance. Armed with this knowledge, you’ll know how to respond if your employer dismisses you.

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Follow on Twitter: @julielabrie

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