Terminations Done the Right Way

One of the most-asked questions posed to any human resources expert is how to terminate or fire an employee properly. Employers don’t like to terminate employees, but sometimes there is no avoiding it. When every option has been exhausted and termination is the best course of action, it should be done “by the book” with every precaution taken to avoid negative consequences. Wrongful termination lawsuits can be damaging to a company’s reputation and can be costly to both the individual and the organization.

There are many suggestions out there, but it’s always best to have a game plan in place to handle any situation. Every company should have an employment agreement that outlines the provisions that the employer will provide and the expectations of the employee. A standard termination practice should be outlined in that agreement, giving the employee an idea of what to expect if things don’t work out.

Termination isn’t fun for either party, but here are some suggestions for the employer for how to go about firing an employee as tactfully as possible:

• Do not fire an employee in anger. In the heat of the moment, self-control is paramount. Before terminating an employee, take time to evaluate the decision. A cooling-off period may not change the situation, but it will provide time to evaluate the decision and plan the termination. When a manager is confronted with behaviour that requires prompt action, such as intoxication or use of illegal drugs at the workplace, consider suspending the employee while preparing his or her termination.
• Follow policy. If a company has written employment policies, including termination procedures they must be aligned with the legislation that governs employment standards in their jurisdiction. The Employment Standards Act in Ontario provides a mandatory minimum notice period, and that notice period is truly a minimum. The courts will take into account several factors when determining an appropriate notice period, such as the employee’s age, ability to secure other employment, and tenure, just to name a few. An organization’s policy must take this into account and managers must follow the policy consistently. If management ignores company policy, a court could determine there was an improper motive for termination. If an employer does not follow its written policy or does not have a written policy, the way management has handled similar situations with other employees may limit the company’s actions. Past terminations can be used as precedent if the former employee decides to file a wrongful termination lawsuit.
• Documentation. The employee’s file should contain a comprehensive history that explains the need for dismissal. Whenever the issues leading up to a termination ate not documented with warnings or efforts to address and improve performance issues the employer’s position is weakened. A well defined performance management process will only help both the employee and employer.
• Just Cause. Terminating an employee for just cause is a situation that must be given considerable thought and attention. Because termination for just cause allows a termination without severance pay, the courts set the bar very high for employers to prove their case. Typical reasons for just cause dismissal can include incompetence, insubordination, theft, intoxication and addiction, absenteeism and sexual harassment to name a few. When considering a termination for just cause it is strongly recommended that the employer seek professional HR and Legal expertise.
• Include a third party. Termination should be conducted in person. Because termination interviews are fraught with emotion, a third party should be present. One person can communicate the decision while the other takes notes to document the meeting. If a manager elects to attend the meeting alone, immediately after the meeting, the manager should compose a detailed memorandum stating what happened and what was said.
• Be respectful. Termination proceedings should be handled with as much tact and consideration as possible, regardless of the reason. It may be helpful to use a neutral location, such as an empty office or conference room. The employee should be given time and space to collect their personal belongings. The employee should be asked to return all documents and equipment belonging to the company, and should be reminded to maintain the company’s confidentiality after departure. The employer must advise the employee when they will receive any and all monies owing to them – whether it will be disbursed to them that day, or on their next scheduled pay. The employer should also obtain a release from the employee – the employer can also consider offering the termination package to the employee upon executing and delivering an agreement and release to the employer.

So, all that is said and done – here is your final checklist:

• Consult your HR and Legal Advisors
• Review your policies and compliance
• Ensure you have a Performance Management Process that allows for documentation of verbal and written warnings and actions taken to improve performance
• Keep the circumstances of the employee’s departure confidential and respectful.