Work Separation Agreements
22 décembre 2020
Most of the time (but not exclusively), the separation agreement ensures that the dismissed worker cannot assert the right to illegal employment against the employer. This is important because illegal requests for dismissal, even if not attributed to the applicant, can have a significant impact on a company`s time, financial resources and public image. The employer`s legal considerations are the risk that the worker will be able to appeal. The employer will compensate for this risk by deciding whether the worker should be dismissed and assessing what can be done to reduce that risk through severance pay. The employer may decide to unilaterally offer separation conditions in order to mitigate the redundancy, to make the terms of separation conditional on the payment of the severance pay to the exemption of potential legal rights from the employer, or to pay a table football amount in exchange for an release. As explained below, the worker must assess whether he must aggressively supervise the employer`s risk, inform the employer of his risk of trial and seek a common basis on the terms of a separation agreement. It is sometimes desirable for the company and the dismissed employee to enter into a transitional advisory relationship after the termination of the employment relationship. The company may use the employee`s expertise and institutional memory, while the employee may be able to generate additional revenue. Among the most important conditions of these transitional arrangements are: in order to compensate both parties, the parties would have to approve a separation agreement stipulating that no party committed any wrongdoing and that the dismissal of the worker was due solely on the basis of his actions.
In addition, in the case of mandatory severance pay for staff, payments and amounts should be indicated in this agreement. An agreement on employee separation may also include additional clauses that protect the company, including: Work cases are usually materially complicated and can also be legally complex, meaning they are costly to pursue. Employers recognize that it is difficult to defend six-figure employment cases. In addition, many legal claims involve the collection of legal fees from a dominant employee. If there are situations where a worker may be forced to pay a dominant employer for his or her legal fees, these are less common. Most employers recognize this dynamic and move closer to separation negotiations with the idea of an acceptable risk of imposing defence costs to defend an undeserved claim. It also means that employers are much more likely to pay deserving fees before paying legal defence costs. Neither party is likely to be brought to separation negotiations by discussing the risk of future fees for counsel to the other, as this will only be an opportunity for both to take a position. Nevertheless, the risk to the employer of paying legal fees through legal action and possibly paying the former employee`s fees and expenses is expected to increase during the negotiations.
The fact is that simply applying an aggressive legal position to the employer in a separation negotiation may not be the best outcome for the worker. The employer`s perspective must be taken into account, the right approach must be taken from the outset and negotiations may be an opportunity to achieve the worker`s long-term goals once severance pay has begun. As has already been said, dismissal for discrimination of any kind constitutes an unlawful ground for dismissal. These include workers over the age of 40 protected by the Protection of Older Workers Act (OWBPA), which is part of the Age Discrimination Act (ADEA).