Can I Get Fired For No Reason?
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I was recently asked by a reader to write a blog on the subject of terminations. This reader shared with me that at their workplace it is not uncommon to see colleagues working as usual one day, and gone the next, with nothing more than a standard email by organizational leadership saying that the person is gone and wishing them well in their future endeavours.
There is no question that this kind of conduct is deeply concerning, and can have a detrimental impact on other employees, not the least of which is that it can instill fear and mistrust of leadership, and of the organization’s human resources practices.
In order for me to answer this question as thoroughly as possible, and ensure that I answer it appropriately for all of my readers, I will address the question first from a legal perspective for Canadian and American readers, and then I will address it from a human resources perspective, and I will conclude with the subject of terminations within unionized environments.
The Canadian Legal Perspective
For Canadian non-unionized readers, there are two ways in which your employer can terminate your employment. The first is “with cause” and the second is “without cause”. It is important to note that the word “cause” has a very specific legal definition, which does not translate to “with a reason” and “without a reason”.
When an employee is terminated “with cause”, it means that the employee has wilfully engaged in such egregious conduct as to render the employment relationship completely dissolved. It means that there is no way that the employment relationship can be remedied, and that all trust has evaporated. The types of conduct that may result in a termination “with cause” could include theft, violence, and a conflict of interest to name a few. Proving “cause” is an arduous process for employers, and it is much more rare than most readers may imagine. Generally speaking, courts in Canada do not like “with cause” terminations because it leaves the employee with no job, no money (sometimes called severance), and the employee will likely not be entitled to government employment benefits. In other words, the employee is left with no way to support themselves, which is frankly just not the Canadian way.
The second way in which an employee may be terminated is “without cause”. In this scenario, the employer can terminate the employee without a reason, but they do need to pay the employee some money. The question as to how much money exactly can be a tricky one. There are many considerations in making this determination which include but are not limited to:
Whether the employee has an employment contract with a termination provision in it,
The age of the employee,
The amount of time that the employee has worked for the organization,
The seniority of the employee,
Whether the employee was induced to work at their existing workplace or if they applied voluntarily,
Whether the employee manages other people,
And several other factors that are quite nuanced and are case specific.
It also depends on which province the employee lives in. The province of Quebec has very different employment laws than the rest of Canada, so location can play a critical factor.
The range of pay that the employee who has been terminated “without cause” may be entitled to ranges from two weeks to two years! Yup. That is not a typo. Anywhere from two weeks to two years. I won’t go into more details, but I may write a blog about this in the future.
So, we now know that non-unionized employees in Canada can be terminated “with” or “without” cause, and they do not need to be told in advance, nor do they need to put on any sort of performance improvement program – at least not from a legal perspective.
NOTE that employees may not be terminated if any consideration in doing so has anything to do with human rights matters. For example, an employer cannot terminate an employee because they are female, disabled, of a particular religion, etc. That is against the law. Full Stop.
Also note that the above does not apply to employees who are federally regulated in Canada. Federally regulated employees are those employed in sectors such as telecommunications and banking. No groups in our movement would fit into this category of worker.
The U.S. Legal Perspective
The U.S. legal perspective is very different from Canada. In the U.S., employment laws are built upon the doctrine of “at will”. The short explanation of “at will” employment is that U.S. employers can terminate their employees without any notice, or any money, as long as the reason for the termination does not have anything to do with any human rights matter as I’ve noted above under the Canadian Legal Perspective.
This also means that the U.S. employee can quit their job with no notice.
Further, this legal doctrine means that the employer can change any aspect of the employee’s terms and conditions of employment such as their benefits plan, their duties, their wages, etc., at any time with no notice.
While there are some exceptions to the “at will” doctrine such as employees who have an employment contract or those who work for an organization that has an internal policy that states otherwise. The general “at will” provision in the US is, in my view, a very troubling one. Employers who rely on this doctrine of “at will” are creating a work environment based on arbitrary and unfair practices, and where the employment relationship is tentative at best.
NOTE: For Canadian employees who have been given an employment contract or an employee handbook that says that the Canadian employee is subject to “at will” employment, it is illegal. “At will” employment does not exist in Canada, and any court will immediately sever any ‘piece of paper’ that indicates that a Canadian employee is subject to “at will” employment. Attempting to do this by an American employer can be a costly employment law mistake.
The Human Resources Perspective
Work environments that do not prioritize transparency, fairness, and clear values, are ripe for high levels of burnout, low levels of engagement, and feelings of cynicism and exhaustion, both physically and emotionally. These types of organizations are usually wrought with poor internal interpersonal relationships, fear, irritability, and other consequences such as feelings of low work satisfaction which often tumbles into the employee’s home environment.
These are not the kinds of organizations that are going to empower their employees to do the radical kind of work that is needed to change the world for animals.
So What Does Best Practice Look Like?
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Best practice means that organizations have clear, fair, and well understood practices regarding performance. These organizations have documented and consistently applied performance improvement programs, which begin with open dialogue. When a leader notices that an employee is struggling in their job, the very first thing that any responsible leader does is have a private discussion with the employee. They talk with their employee about the employee’s failing performance, and ask that employee to share their perspective. Then, the employer should listen. They should listen in an open and empathetic way.
Then, depending on the outcome of this conversation, any number of next steps may be embarked upon. These next steps may include arranging for any needed training, support, or mentorship. It may be clarification of roles and responsibilities. It may be providing assisting in solving interpersonal conflicts. And, it may also be putting an employee on a performance improvement program.
If a formal performance improvement program is needed, that program should be based on SMART principles. S = Specific, M = Measurable, A = Achievable, Reasonable = , and T= timely.
The duration of this type of performance improvement program can vary widely depending on the nature of the performance challenge. But in all cases, the employee should be provided support, an opportunity for regular dialogue, and as noted above, clear SMART deliverables.
After all of this, if the employee still cannot meet the needs of the organization, then it may well be time for the employee to be terminated from their employment.
In all such cases, the employee must be treated with respect and dignity during this type of challenging life event.
The types of considerations that the employer must prioritize for the terminated employees are:
Allowing the employee to say good bye to their peers,
Encouraging the employee to co-write any departure message that might be sent from the human resources department,
Allowing the employee to take copies of any personal information that may be stored on a work computer,
Allowing the employee to transfer a known cellular phone number to a personal cellular phone,
Providing the employee with a reference regarding the employee’s strengths which may assist them in securing alternate employment,
Being given the ability to clean out their own physical workspace if they have one, and
The employer must not speak ill of the departed employee under any circumstances.
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Employers should also communicate with the remaining team members who will be taking over the departed employee’s duties, sharing whether the departed employee will or will not be replaced and the timeline for doing so, as well as letting the employees know how to address any other operational issues such as what to tell outside organizations and donors if and when someone calls asking to speak to the departed employee.
Treating every single person with the respect that they deserve must be prioritized in all employee-employer communications, including at the time of termination.
Unionized Environments in Canada and the United States
Lastly, I wanted to address terminations within unionized environments. While I have not regularly addressed human resources matters in my previous blogs, given that Animal Legal Defense Fund or ALDF is now unionized, and since it is my hope with these blogs is to empower all employees in our movement, I will be making an effort to address unionized environments on an ongoing basis.
When it comes to terminations within a unionized environment, the protocols are always laid out as clearly as possible within the organization’s collective agreement. For those who many not be familiar with collective agreements, they are, in essence, like an employee handbook. They include the employment policies and practices that govern the relationship between the employer and the unionized employees which typically include various things such as pay, benefits, paid time off, and yes, terminations. And, by collective, it means that the policies and practices apply collectively, or equally, to all union members. In the case of terminations within a collective agreement, the collective agreement will fully negate the “at will” employment doctrine in the U.S. Instead, the collective agreement will provide for a clear progressive process of what is to occur in the event that an employee is not meeting the minimum standards of their employment. The process usually includes the requirement by the employer to provide the employee with a verbal warning, one or more written warnings over a reasonable period of time, support and training if needed, and it also includes the details of what is required to terminate a person’s employment. In addition, in a unionized environment, the termination of employment can be disputed through an arbitration process, and can also be overturned by the Labor Relations Board. In other words, employees cannot be terminated without due process.
Regardless of where you work, or what organization you work for, we are all working towards the same thing. We are working to ensure that animals are given the care and respect that they so rightly and richly deserve. As such, doesn’t it just make sense that employees are also given the care and respect they deserve?
This blog is provided for general information purposes only. It is not intended to provide legal advice or opinions of any kind. No one should act, or refrain from acting, based solely upon the materials provided on this website, any hypertext links or other general information without first seeking appropriate legal or other professional advice.
The intention of this blog is to promote the longevity and engagement level of the activist community within the Animal Advocacy Movement (AAM). The majority of the advice will be geared towards employees within the AAM in Canada and the United States, but may be applicable to other countries.
Krista is the Executive Director of For The Greater Good where she consults with animal protection organizations across North America on matters of organizational development and governance. In addition to holding five degrees and designations in human resources, including a master’s degree in organizational development and leadership, she is pursuing her doctorate focused on the employment experiences of animal rights activists in Canada and the United States. Krista first joined the Animal Advocacy Movement as the VP of Mercy For Animals in Canada where she led twelve undercover investigations into factory farms and slaughterhouses. Krista also served as the President of the Board for Happily Ever Esther Farm Sanctuary for over five years, also now serves on several other Boards including One Protest, The Rancher Advocacy Program, Egg-Truth, and Dairy-Truth. Krista is also a member of Womxn Funders in Animal Rights. Krista is a peer reviewer for the Journal of Critical Animal Studies. Prior to joining the Movement, Krista founded a boutique employment and labour law firm in Toronto where she consulted to employers across Canada and the U.S. for a decade, and before that she spent fifteen years in human resources including as the Vice President of HR for one of the largest software companies in the world.