Help yourself by helping your former employees
It is established law, that when employees sue for wrongful dismissal they have a duty to look for another job. This is known as mitigation. In other words, our laws require employees who have been terminated from their employment, to help themselves. Employees in these situations can help themselves by looking for jobs, applying for jobs, going to interviews and accepting comparable positions.
Once an employee finds a new job, any work he/she performs will be credited against the notice period owed by the employer. If the employee finds a job that pays the same as or more than their current position, the notice period may stop running on the date the employee starts the new job. If the employee finds a job that pays less than their current income, then the damages awarded will be the difference in their income over the notice period.
While the employee’s obligation to find work is a legal one, an employer could significantly benefit from a departed employee finding comparable employment. It is in the interest of the employer to help departing employees find new work.
How can employers help?
Employers can help employee in numerous ways, including:
A. providing a reference;
B. providing comparable job posting; and
C. paying for outplacement services.
A. Providing Reference:
Providing a reference to a past employee is often a balancing act. Many employers shy away from this practice as they fear that they could face a negligent misrepresentation lawsuit from a subsequent employer, who relied on an inaccurate, incomplete or false reference. Another growing concern is that by providing a reference, the employer may be exposed to defamation lawsuits by the departing employee.
To reduce these risks, employers should consider the following:
- To avoid misrepresentations, references should be provided in writing.
- References should always be fact driven, accurate, precise and without malice.
- References should avoid flowery language, false flattery or mean-spirited opinions.
- Implement a company-wide policy which requires all requests for reference to be directed to Human Recourses. This will provide some level of quality control to the process and the product.
- The policy should address that reference through social media (such as a LinkedIn endorsement) should be considered to be the same as an employment reference and thus, should only be provided by HR.
- For certain terminations, such as a termination with cause terminations or wilful misconduct, a positive reference may lead to possible contradictions and weaken the employer’s position. In these situations, a letter confirming the terms of employment may be beneficial.
- Prior to providing reference to a third party, employers should ensure that they have received express consent (preferably in writing) from the departed employee.
B. Provide comparable job postings
Even in the absence of litigation, some employers often send employees relevant job leads on a regular basis. Depending on the reasons for separation, some employers even reach out to their network to assist the employee find comparable employment. These practices can be helpful for few reasons:
- it is in the company’s financial interest if the employee finds comparable employment as soon as possible
- in the event of litigation, the employers can rely on the fact that there were numerous jobs available to the employee and further support their position that the employee failed to mitigate. Our courts have noted that employers should not rely on available job posting after the fact (i.e., in the course of litigation), unless the employer tried to help by providing the postings when it became available.
C. Paying for outplacement services
In essence, outplacement services provide departing employee with career counselling. The cost of this service is generally born by the employer. These services help with resumes, career assessments, interview preparation, networking opportunities, etc.
Depending on the reasons for separation, it may be beneficial to offer a departing employee with outplacement services as part of his/her termination package. Not only could outplacement services help the employee find new work quicker, it also in reduces wrongful dismissal lawsuits.
Assisting former employees find comparable positions is not only beneficial for the employee but also the company. Aside from reducing notice period related exposure, employees who receive assistance from their former employers often leave with a sense of loyalty and appreciate the employer’s attempt to help them in a period of transition.