Dear Ross,

Thank you for your question and I look forward to assisting you. That being said...

Generally, if there is no written employment agreement to the contrary, the employer has discretion to dictate the terms of employment; this would include promotions, job changes, lateral moves, salaries, etc. "At will" also includes the mutual right of employee and employer to terminate the relationship at any time, without notice, and for any reason. Generally there is no mandate that termination is in writing nor acknowledged by employee (if there was, not employee would acknowledge and so no employee could be terminated, potentially.) The only exception is that the employer is more limited in that "any reason" for termination or for differential treatment can not be due to reasons of illegal discrimination, such as discrimination based on race, religion, gender, age, disability, etc. However, if there was a written employment contract, including possibly a union contract, that expressly holds that employment termination must be in writing, that that contract would dictate. So make sure to check the union requirements as to any writing. Also, at times, an employee manual can be deemed to be an implied contract of terms of employment so if it indicated written notification, that will be important.

Apparently this employer is stating that when your son allegedly didn't show for work, it was a constructive resignation. Therefore, presumably the date they are relying on is the most recent date he failed to show. I would check the union contract ASAP to determine appeals rights with regard to a allegation by mamagement of date of separation. For instance, if your son actually worked shifts after the alleged date of separation, clearly the date of separation is wrong. You need to submit that it was a different date - notification must be given, but it need not be in writing. Yes, I know, then how does one prove it? There are possible ways - for instance, when your son DID finally get notice, was it because he came into work only to be told that he had been fired. The fact that he came to work that day would tend to show that he had not been notified. The alleged date of notification, does the managmenet provide who what when and where that took place? Did your son actually work after (thereby completing refuting the fact of the separation on that date?). Whatever appeals processes exist via the union he must immediately avail himself of. For instance, when he asks for union mediation, he can put down the actual date of notification of separation - whose word will they take for it? They will have to check it out, in all likelihood. So he needs to try to get his proofs together that tend to show he had not been fired before hand. For instance, if his employer says he was called on the phone and fired, that is easy to refute, because phone calls can be seen on the phone bills. If they say him came in and they told him, if he shows he was never there that day, has an alibi about being elsewhere, that could help show the deceipt on the part of the employer.

He must, in any event, ask for the mediation alleging a date within 10 days of the date he says he was fired. It appears to be bad faith on the part of the employers, which is a violation of contract law in any event, because there is an implied term of good faith in all contracts.

Hope this helps to clarify.

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Stephanie Joy

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