By Howard Levitt
Monster Employment Law Expert

Rarely should a termination for cause come as a surprise to anyone. Let's face it, there are warning signs that your job is in jeopardy. You can choose to ignore the signs and kiss your severance package goodbye or you can protect your right to a severance package. Here are some ways to throw a wrench in your employer's plan to terminate you without any compensation.

1. Identify "red flags" raised by your employer which indicate trouble is brewing. If you have had one or more meetings with your employer where you have been counselled or verbally warned about misconduct or poor performance or have received written warnings or suspensions, you are on the road to a termination for cause. For most forms of misconduct, employers have to demonstrate to a court that you were warned and given an opportunity to improve before they can successfully assert cause for the termination. Meetings, letters and suspensions are ways of proving that you knew your conduct or performance was unacceptable. In essence, your employer is "building" its case for cause.

2. Understand your employer's expectations. If you are placed on a performance improvement plan (PIP), make sure you know what is required of you under the plan. Ask for additional training if required or any other assistance you need to succeed. Identify unrealistic expectations and voice them.

3. Respond to all criticisms of your performance or your conduct in writing. Employees often remain silent in the face of such criticisms. Silence equates to acceptance. If there is a reasonable explanation for your poor performance, such as lack of training or proper equipment to carry out your duties let the employer know. If you are being unfairly criticized, say so and why-although politely and respectfully to avoid a termination for insubordination. Don't wait until after the termination to dispute the validity of the warnings. It is too late then. Ask for all your responses to be put into your personnel file along with the warning letters.

4. Create your own "paper trail". An employer creates a paper trail to build its case for cause for termination. Keep copies of all warnings letters or written criticisms of your performance and your responses to them. Where you are not able to respond, keep notes of the incidents giving rise to the criticisms and your take on them. Courts love documentary evidence and your memory may fail you over time.

5. Do not be lulled into a false sense of security. A series of minor incidents, even those which occur sporadically over a period of years, may amount to cumulative cause. If you have promptly and appropriately responded to each incident, your file will show your performance in a more balanced light and undermine your employer's attempt to taint your record by grouping a series of varied and minor events for the purpose of creating cause for your dismissal.

6. Don't accept a disciplinary probation unless it is a term and condition of your employment. Your employer cannot place you on probation for poor performance or misconduct unless your employment contract provides for that. Probation is one step away from termination. It is much easier to terminate a probationary employee than one who is not on probation. If your employer tries to impose a probation anyway, you may be able to assert constructive dismissal and trigger your right to a severance package.

7. Get legal advice. Once you are able to recognize that your job is in jeopardy, you can benefit from obtaining legal advice to make sure that you are responding appropriately to your employer's efforts to get rid of you. The guidance of counsel, experienced and skilled in employment matters, is invaluable in ensuring that mistakes are avoided.

For more information or to arrange a telephone consultation or a visit to our offices in please visit http://www.levittllp.ca/our-team.