Everyone would like for all employment relationships to work out great each time. The employer and employee get along, the work environment is the right type for everyone there, interpersonal relationships with the staff are positive, employees stay with the business long-term, overhead and cash flow are not a problem for the employer, and everyone lives happily ever after. Unfortunately, this is simply not the reality of operating a business.
The reality of operating a business is that things rarely go without hiccups, there will be issues that arise with interpersonal relationships between staff, not every employee will be a good fit for the job, some employees expectation may not fit what’s available at your particular business at the time, whether profits are up or down and, as always, businesses will be at the mercy of the prevailing state of the market, economy and specific industry at any given time. Part of this reality is that every employer will eventually have to face terminating an employee. Which raises the question: what’s the best way to go about terminating an employee?
Practical Considerations in Terminating an Employee
When it comes to the actual communication of the intention to terminate the employment relationship, there are a number of practical considerations to keep in mind. Treating an employee with respect and professionalism when it comes to ending the employment can go a long way for both parties. A termination doesn’t necessarily have to mean burning a bridge.
Make sure a termination is done in a face-to-face meeting. Terminating an employee via email or a phone call communicates that this isn’t something that is particularly important to you, just another office task to complete. It is highly unlikely your employee feels the same way. Talk to them, explain your decision, wish them the best in their future endeavours.
Another thing to be sure of is that you have everything ready for the termination meeting. You should ensure you have all the documents you need to provide the employee on hand, that you’ve thought of what company property you might need the employee to return and any other considerations. You don’t want to make the termination any more drawn out than it needs to be. These are uncomfortable situations in the best of times and while you need to approach them carefully, the process does not have to be longer than it needs to be for the sake of all involved.
Legal Considerations in Terminating an Employee
Along with the practical considerations there are also the much more important legal considerations.
One of the most important legal considerations is that the employee should have been made aware of the issues that lead to their termination BEFORE they are terminated. Ideally there will have been at least two meetings regarding the issues in which the employee was provided with a written letter outlining the problems with specific examples and what you hoped to see with respect to improvement. The termination meeting should not be the first time the issues that lead to the end of the employment are raised with the employee. This could expose you to a wrongful dismissal claim.
It’s also important that there is no misunderstanding as to what occurred during a termination. This is why it’s important to have at least one other individual present for the meeting. Often a Human Resource representative is ideal. That way if there is a disagreement between how a termination occurred you can have another person give evidence supporting what really occurred.
It can also be helpful to have a Release for all potential claims when terminating an employee. Even if you do not think that potential claims exists, defending against a baseless claim in court can still run up your legal fees, so best to nip it in the bud when you can. The offer of a termination bonus contingent upon the signing of a Release can be an easy way to create goodwill with the departing employee and limit your exposure at the same time. If you op for this route ensure you give the employer time to have the Release reviewed by a lawyer. You don’t want an accusation that you forced the employee to sign the Release without understanding it.
You should also be mindful of when not to terminate an employee. If you have an employee on medical or parental leave, under no circumstances should you terminate their employment without having obtained legal advice from an experienced employment lawyer. Terminating an employee on leave can give rise to a host of issues including potential exposure to liability under human rights legislation.
If you have to terminate an employee contact the employment lawyers at Taylor & Blair LLP for a consultation to ensure you limit your exposure.