Funeral for a Job The Need for Outplacement Services

by : Bram A. Lecker B.A. LLB

It's another morning at work. Through the elevator door that needs oil, past that infernal clock that runs too fast, the faint smell of bitter coffee and carpet freshener wafting in from the kitchen, where the muffled laughter of office banter begins to overcome the soft hum of the computers. You are home - away from home; warm, familiar and secure, until you see the note politely requesting you to attend an unscheduled meeting in the boss's office, you never saw it coming.

Sure, there had been somber talk about belt tightening, budget cuts, and downsizing at head office which you cautiously regarded with slightly more interest than the latest cancer statistics or a hurricane in Florida. After all, what about that last promotion, the Christmas bonus and the report showing improvement over last year's numbers that you carried around like a suit of armour, complete with rose-coloured glasses.

Fifteen minutes later you emerge from the meeting a mass of aching, quivering emotion. The kind that puts a clamp on your heart that makes it hard to swallow - shocked, angry, frustrated, humiliated, and above all, rejected; The feeling of being on the outside looking in and unable to make sense of it all, like an unrequited love; The usual dry apologies, best wishes for the future, half- hearted assurances that you will land on your feet strangely coming from the very people that have just shattered your well being into little pieces; The same people to whom you gleefully donated your heart and soul for the past twelve years.

Recent studies have confirmed it many times.....

Recent studies have confirmed many times - the loss of a job is the fourth single most devastating event to an individual's emotional well being - just after death of a child , parent and divorce. Indeed, the symptoms of reactive depression which affect many who unexpectedly lose their employment - sleeplessness, anxiety, lack of appetite, indecision and irritability - closely resemble a person in mourning.

For many, the initial shock and humiliation quickly ripens to a sense of exploitation and outrage. The desire to strike back at your former employer, who so callously ripped away your family's economic security is predicable and overwhelming.

The legal system is ready and waiting; always able to accommodate those people suffering financial misfortune, who are willing to take the risk, at the appropriate price.

Actually, there is no better time to sue one's employer. Nearly forty years of litigation has produced a definitive and reliable regime which presently leans heavily in favour of the wrongfully dismissed employee - the only truly innocent litigant. In fact, when an employee is dismissed without cause and for reasons of "restructuring", "downsizing", lay-off or some other economic reason, the issue is not whether the employee is entitled to compensation, but how much. Depending on an employee's age and position, the current "rule of thumb" is one month's remuneration per every year of service, plus commensurate employment benefits - just for starters.

In practice, you see it all; the father who uncharacteristically begins to physically discipline, the mother who neglects her young children, the financial crises, breakdown in marital relations, the gambling, the person who walks into the shower and stays long after the hot water tank runs empty.

Unfortunately, the legal response can only supply a temporary superficial resolution - there are always longer lasting far-reaching consequences.

In reality, generous "heart balm" payments obtained through settlement or the Courts, are ill- suited to deal with the real agonizing effects of a sudden, unplanned termination of employment. Much like the impotence of the Family Law Courts in dealing with the raw emotions on marital breakup, there is always the lack of self-worth, the insecurity and the burning anger born out of rejection, which cannot be extinguished by monetary compensation.

For employers, the process in no picnic either. Whether it is the guilt-ridden principal of a family-run business reluctantly letting go loyal staff that have been with the firm since inception or a multi-national corporation, being pilloried -by the press after a massive cost cutting "restructuring", the experience is always painful. Most of the time it is the sadness and empathy one human being feels when giving someone else bad news. The result is a free fall in morale, rifling through an organization like some new virulent strain of the flu.

Then there is the cost. Employers who steadfastly ignore the recent developments in the law, and proceed to handle the termination in an overly frugal antiseptic manner, without regard to the emotional effects on the departing employee, can expect to pay tens of thousands to defend the inevitable lawsuits - usually to no avail. In the end, they will only throw more money at the problem until the employee goes away grumbling.

And, therein lies the mystery - that no one has conceived a practical solution to thus eternal sea of conflict until now.

The most effective defense that an employer can raise in any wrongful dismissal action is that the departing employee has found a comparable job prior to the expiry of the assessed notice period.

Accordingly, it is well established in our law that the employee is legally bound to exert all reasonable efforts to find a job. This is the so-called mitigation doctrine.

To most employees, after the shock of the dismissal wears off, the natural instinct to find a replacement to the income they had just lost is overwhelming.

Given the above, the two parties should be walking down the same road with the same objectives. Unfortunately, in the current confrontational atmosphere, the system encourages the parties to begin to knock heads - often as a result of benign neglect to address the mitigation issue in a meaningful way.

The most benevolent employers will attempt to address the problem by engaging "relocation" counselling plans, often at very high cost per individual terminated employee. The services provided by even the best of these old style firms - resume preparation, provision of office contacts and equipment - are limited. In this day and age of home P.C.'s and the Internet, the efforts and expense are wasted. The employee's perception is always one of tokenism and resentment for an obviously half-hearted gesture. Moreover, there is always the suspicion that the firms are operating on the employer's agenda, not attuned to the dismissed employee's real needs.

There is, however, a small cadre of new style employment transition firms that developed from the Employment Assistance Program (E.A.P.) concept in the U.S. These firms provide traditional job search services with computer-generated resume presentation, financial advice, self- employment marketing and most importantly, stress/crisis counselling on a one-to-one basis. This is a truly effective way of addressing the problem faced by both parties in a direct way. It shows the employee that the company has not dropped him like unwanted baggage; it addresses, not solves, the significant emotional turmoil caused by the termination and provides a viable and effective means of obtaining alternate employment so that the employee can "mitigate" the loss, thereby reducing the severance the employer must pay. The cost for these services to the company are equal to, if not lower, than the traditional relocation counselling firms and can be structured into the severance package on a tax-free basis.

If the aforementioned is not enough of an endorsement for this new approach, employers should take note of the recent Ontario Court of Appeal's decision in Ahmad v. Proctor and Gamble. There, the Court expressly recognized the efforts made by the employer to assist the dismissed employee in finding an alternate job and conducting the termination in a humane and sensitive manner. The damages that the employer paid were substantially reduced in the result, proving the investment in a fair approach to the problem is the best business decision to be made in the circumstances.