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THE QUESTION

My company was bought out by another company last year. They are in the midst of a round of layoffs and I would like to be laid off so I can receive severance and look for a new job. I’ve been thinking about a career change for a few years and it seems like the perfect opportunity. Should I approach my new employer about my desire to leave? How can I convince them to lay me off?

THE FIRST ANSWER

Waheeda Ekhlas Smith, barrister and solicitor, Smith Employment Law, Toronto

When a business is acquired by another, it is through an asset or share purchase. In your case, it appears that your old company was bought out through an asset purchase and that the new company continued employing you. It is unclear if you signed a new employment contract with the buyer.

Regardless, in Ontario, a non-unionized worker’s employment is guided by the Employment Standards Act, 2000. This legislation outlines employees’ rights and employers’ obligations regarding minimum standards including termination and severance pay. Any employment contract must meet ESA minimums but can provide employees greater entitlement than those minimums.

If on its own initiative, the company chooses to lay you off and you either do not have an employment contract or have an unenforceable one, the “severance package” based on the common law can equal up to 24 months of compensation depending on your age, job, salary, seniority, etc.

Approaching the company about a severance package is risky and unpredictable. If the company knows that you want to leave your job, they could ignore your request and you would either have to keep working or feel compelled to resign. They could offer you minimum ESA amounts but those could be far less than your common law entitlements. If you have reason to believe you will be laid off, it is more advantageous for you to wait for their package and then negotiate. Tipping your employer off to your plans reduces your bargaining power.

Before approaching your company, speak to an employment lawyer to discuss strategy and your options.

THE SECOND ANSWER

Mélanie McClure, CHRO, FX Innovation, Montreal

I must admit, this is a nuanced question that has a lot of elements to consider. The answer is not black or white.

If you, as an employee, are no longer happy in your position and are looking for opportunities elsewhere, I would suggest first and foremost speaking to your employer. Your manager will certainly be disappointed to lose you, but they will also undoubtedly be appreciative of your transparency and thoughtfulness of what comes next (hopefully a smooth transition for both parties). It goes without saying that although managers never want to lose good employees, sometimes a company or a position no longer responds to a person’s needs or ambitions.

All things considered, directly mentioning that you wish to receive a severance package is risky, but it doesn’t mean it’s an impossible task. If you know with certainty that the company is in a restructuring phase and is offering packages, there’s more room for this type of conversation. I would suggest you include an explanation of the reasons why you wish to leave and the opportunity for your manager to ‘save’ an employee who would like to stay over you. This does not mean that you will convince your employer to act on your demand, but it can bring this option to the table.

Company restructuring is often complex, and behind the scenes it’s quite complicated with many variables to consider (e.g. will each position be targeted – it might not be yours, how many people are going to be laid off, when is it effective, etc.).

Because every situation is different and multifaceted, it is difficult to advise clearly on whether someone should or shouldn’t approach their employer on this matter. If you decide to go ahead with it, approach your manager without any expectations and prepare yourself for all possible outcomes, best and worst. With this mindset, you will not be disappointed with the result, but proud of your courage to face the situation.

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