Do you qualify for severance pay?

Losing your job is tough enough but you’ll get some severance pay, won’t you? Not necessarily.

There are many situations where you won’t get any severance pay.

I divide these no severance situations into two categories.

The first category covers people hired for a specific task or for a fixed period of time. Let’s say you’ve been hired to fill in for one year while Debbie is on a maternity leave. The year is up and you are out the door — with no severance. Suppose you are hired to help set up a Christmas display for a department store. It takes two months to complete the task and you are shown the door. You get no severance pay.

The second category covers people who are dismissed for just cause. Courts use the phrase “just cause” to cover a wide variety of circumstances where it is reasonable for an employer to get away with not having to pay any severance payment to a fired employee. It’s really impossible to describe all of the circumstances that can amount to just cause, but they fit into several scenarios. What they all have in common is that the conduct of the employee is such that there is a breakdown in the trust between the employer and employee. I’ll give you some examples but you’ll quickly see that often there’s room for disputes and that’s when the lawyers get called and the threats of lawsuits multiply.

Gross incompetence is grounds for dismissal for just cause. In other words you simply can’t do the job you were hired to do. But, unless you lied about your qualifications your employer has to give you the proper tools and training to do the job.

Gross or wilful misconduct of a substantial nature is grounds for dismissal for just cause. But, trivial violations are OK, and in except in the worst situations you are entitled to a warning and a second and sometimes a third chance.

Dishonesty, in other words, lying to your boss or stealing, is almost always just cause. But, courts are willing to forgive some

dishonesty provided it isn’t substantial. Some small indiscretion committed by a long-term employee may be more easily forgiven than an indiscretion by a newer employee.

Chronic lateness or absenteeism without good reason is just cause. But, if you have some medical justification or a valid reason you should be given a lot of leeway. Make sure to get a doctor’s note to fortify your case.

Prejudicing the legal rights of your employer can lead to just cause. If you engage in a violation of human rights legislation, for example, you engage in sexual harassment, you’ll be shown the door with just cause pretty quickly. You’ll likely get no warnings or second chance. Downloading, viewing or distributing pornography from your desk is definitely not a good idea.

Violating company rules can lead to just cause. It depends on the specific rule however. Violating a dress code is no big deal but violating a workplace violence policy is definitely bad news.

Space constraints don’t allow me to go on with examples. There are two important points here. First, the circumstances in which there can be just cause are extremely broad. Second, in many cases there’s a lot of room for argument on whether just cause exists and that’s why there are a lot of lawsuits.

But in the end ask yourself these simple questions: Is it fair that the employee be terminated with nothing? And has the employee really permanently harmed the employment relationship? If the answer to either question is yes then you may as well look for a new job and forget about severance. But, if in doubt get legal advice.

In the next column on Nov. 5 we’ll explore just how much you can get if there is no just cause.