Readers of certain age will recall the Berenstain Bears books – either you read them or they were read to you. I’m often reminded of them when I read decisions where a judge or arbitrator says, in effect, “Little Bear, this is what you should not do!”
An example can be found in the recent case of Gordon v. Altus Group Limited.
Altus terminated Mr. Gordon’s employment, claiming they had cause to do it, in an effort to avoid paying the severance amounts to which he was otherwise entitled under his employment contract. Altus did no performance management prior to the termination and enforced a non-competition provision which prevented him from seeking alternative employment. They also claimed, without merit, that he used an inordinate number of obscenities in the workplace; hired someone accused of fraud; and engaged in a conflict of interest by lending money to a company with which Altus did business.
In the words of Justice Glass, Altus “ran roughshod over [Mr. Gordon] and put together a process to justify their actions after the fact. … Altus got mean and cheap in trying to get rid of [him]. … That appears to me to amount to Altus wanting to have its cake and to eat it. Now, there is no free lunch in this world and Altus cannot expect to have one.”
It turned out to be a very expensive lunch indeed! Mr. Gordon was awarded his contractual entitlement to severance ($168,845) plus punitive damages in the sum of $100,000.
This is obviously What You Should Not Do!
It is possible to terminate an employee for cause where performance is the issue. However, this should usually only happen where an employee is (a) made aware of the employer’s concerns; (b) given time and resources to support improvement; and, most importantly, (c) clearly warned that their job may be at risk.
Finally, while spell-checking this blog, I came upon a fascinating trove of scientific (?) speculation about the proper spelling of “Berenstain”. Which may really be “Berenstein”? For anyone interested in the possibility of parallel universes, here’s a place to start: The Berenst(E)ain Bears Conspiracy Theory That Has Convinced the Internet There are Parallel Universes