Frequently, employers feel that they come out of a termination experience worse off than the fired employee. After paying severance, legal fees and an expensive judgement, their perception is correct.
This doesn’t have to be the case. Employees can be terminated for just cause and the employer does not have to provide the employee with any settlement. However, the courts have set a very high standard for determining what is “just cause.” Employers have gone into court with what they thought was an open-and-shut case and were shocked to find that the courts determined that they were wrong. A costly settlement with accompanying expensive legal fees has often been the result.
Preventing a costly termination starts before an employee is hired and continues until the employee signs a release form.
Pre-employment planning
Prior to hiring an employee, the employer needs to determine:
i) What work will the new employee be expected to do? Does the job description properly describe what will be required?
ii) How long will the job last?
iii) What skills, technical and interpersonal, are needed?
iv) What personal traits (detail orientation, dedication to the job, common sense, etc.) will the employee need to satisfy you?
v) How will the new employee be managed?
Hiring
When hiring an individual, it’s important to match the conditions that have been determined in the pre-employment plan with the skills and attributes of the candidate.
Obviously an interview is one step in determining whether there is a good match. However, effective reference checking is high on the list of importance in the hiring process. What a person has done before will often reflect what they’ll do in the future.
Orientation
Too often the focus of orientation is filling out forms and meeting people. The critical issue should be to make sure employees understand what’s expected of them.
Ensure new employees know the rules of conduct, the required standards of performance and other expectations necessary for them to be successful.
Managing the employment relationship
During an employee’s probationary period, it’s important to review on a regular basis what the company expects from them in quality and quantity of work, conduct and other work-related requirements.
Once a new employee has completed their probationary period, it’s important to maintain regular communications. Keep the employee informed as to whether his or her performance is satisfactory. In cases where there’s a need for improvement, this should be clearly explained.
The manager should keep a written record of what areas have been discussed and what improvement has been requested. Any such request should be followed up in an appropriate period of time.
If performance fails to improve, or if an employee continues to violate company policy, some form of discipline should be initiated. Depending on the severity of the offence, the discipline could range from a verbal warning to a short-term suspension.
It’s important to maintain a record of breaches of performance. If an employer has maintained a record of poor discipline that constantly needs to be corrected, the chance of establishing just cause in the event of a termination is much greater.
Single incidents
Without a record of progressive discipline, the courts are reluctant to support an employer’s claim of termination for just cause. It’s difficult to succeed with firings that occur as a result of a single incident. Often, these terminations are carried out in anger without a lot of thought.
There are of course, cases where single incidents do lead to termination for just cause. However, before taking this course of action, consult an employment lawyer to get advice as to the potential success of your stand.
Remember, employees are human
When terminating an employee, it’s important to remember that he or she has personal pride and self esteem. There have been cases where the courts have ruled that when an employer has been insensitive in the way they conduct a termination and/or carry out subsequent actions related to it, they are subject to punitive damages.
A plan that includes a choice of site, time of day, who should be present and the amount of the settlement, should be developed prior to the initiation of any termination.
A final thought
A discussion with a competent employment lawyer prior to instituting any termination is an example of excellent risk management.
