The English magician Tony Corinda once said: “Good timing is invisible. Bad timing sticks out a mile”. As employment lawyers, we talk a lot about the “why”, “what” and definitely the “how much” of terminating an employee, but the “when” is a sometimes overlooked aspect. Some termination timing issues are a question of best practice or common courtesy, while others can attract significant legal liability and can be costly for employers. An employee who is being terminated may not recognize an employer’s considerate timing, but they will certainly recognize inconsiderate timing, and this will make everything go a lot less smoothly. 

When should you not terminate an employee? 

Discrimination 

It is contrary to the Ontario Human Rights Code (the “Code”) to terminate or otherwise discriminate against an employee because of a protected ground. The protected grounds under the Code are citizenship, race, place of origin, ethnic origin, colour, ancestry, disability, age, creed, sex/pregnancy, family status, marital status, sexual orientation, gender identity, gender expression, and record of offences. 

Even if an employer’s intentions are not discriminatory, employers should avoid termination timing which could give the appearance of discrimination. This includes during or following a sick leave, parental leave, or other protected leave, after an employee has made a human rights accommodation request or after an employee has disclosed they identify with a protected ground under the Code, such as being 2SLGBTQIA+. 

If an employer needs to terminate an employee in one of these situations for valid business reasons, employers should ensure that the basis for selecting that employee for termination and the context for the business decision are well documented internally, should any questions about potential discrimination arise. 

Reprisal 

A reprisal is when an employer punishes or threatens to punish an employee for asserting their rights in the workplace. Reprisals are prohibited under the Employment Standards Act 2000 (“ESA”), the Code, and the Occupational Health and Safety Act (“OHSA”). 

If an employee has recently raised concerns regarding their legal entitlements in the workplace, such as harassment or safety concerns, employers should be very cautious about taking any action that could be viewed as reprisal, such as termination. 

When is it not advisable to terminate an employee? 

Though there is no good time to terminate an employee, especially from the employee’s perspective, there are certain circumstances where it should be avoided or delayed if it’s practical to do so, such as:   

• If an employee has recently been diagnosed with a serious illness, suffered a personal loss, or is going through a divorce or other major negative life event. 
• When an employee is approaching a financial milestone in their employment, such as eligibility for a bonus or the vesting of stock options.
• While an employee is on vacation. 
• On or very near the employee’s birthday.

 In these situations, a poorly timed termination will result in heightened negative emotions for a terminated employee and may be viewed by the courts as a sign of bad faith or callousness by the employer. 

What about around the holidays? 

With the holidays around the corner, employers may be looking at any potential upcoming terminations with dread. Is it totally “Scrooge” to terminate an employee in December? Short answer: yes, and it should be avoided if possible. 

Not only is this move going to generally be viewed as unkind and inconsiderate, but it is also a time of year when few employers are hiring, meaning it will be difficult for the terminated employee to commence their job search. This doesn’t only hurt the employee, it increases the employer’s liability in the case of a wrongful dismissal claim, as the employee is less likely to mitigate their damages. Further, an unnecessary holiday season dismissal can be viewed as insensitive and harsh by the courts and could justify an award of bad faith or moral damages. 

Having said that, there is also a school of thought that firing people in early January is no better when people are now facing large holiday credit card bills and would have modified their behaviour had they known about their unstable employment status earlier. 

In a perfect world, employers would avoid early December to late January, but no business can function effectively with that wide timeline. Ultimately, it is a balance of considering the employee’s practical situation with the company’s business needs. Sorry, but it depends!

Is there a best day of the week to terminate an employee? 

While Friday afternoons have traditionally been viewed as the best time to terminate an employee, this timing can cause issues. Though a Friday termination is seen as providing the employee time to “settle down” after receiving the news, the proximity to the weekend can present problems. Firstly, terminated employees may have questions about their termination package, their health insurance, unused vacation time, etc., and terminating them right before the close of business is going to make it difficult for these employees to get the answers they need. Terminated employees also need to be able to access key resources, such as financial, legal, and career advice, as well as mental health services if necessary. A Friday termination forces them to wait potentially two days to access these services, causing more stress and potentially more time to stew on negative emotions. 

Monday is better than Friday but may leave the employee asking why they bothered getting dressed and coming into the office in the first place. 

A mid-week termination is best and provides employees with enough time to get the answers they need or begin their job search. Earlier in the day may also be best, as employers should never lie to the employee about the reason for the termination meeting, and the longer the lead-up, the more likely an employer will be put in a position where they need to lie. 

Takeaways 

Ultimately, as long as you’re not breaking the law (terminating for discriminatory reasons or reprising against an employee), employers need to make decisions and conduct terminations in a manner that makes sense for their unique business and workplace. However, whenever possible, we encourage employers to conduct terminations with as much consideration, empathy, and kindness as possible, as losing a job is never easy or fun for anyone. If you need advice on how to manage terminations in your workplace, get in touch for a consultation.