The decision to tell an employee “You’re fired!” should never be taken lightly or without full consideration of all the facts and potential ramifications.
From the standpoint of the employee, losing a job can be a life changing event. The loss of position, income, prestige, identity, self-confidence and self-esteem can be impactful and painful. For some, replacing the job and pay cheque can be a long and arduous road, sometimes with no end in sight. For others, a change in position, boss or company can be the catalyst for future success.
For the employer, the termination of a problem employee can result in anything from liberation to litigation, and everything in between. There is no place for dishonest employees in a business; proven dishonesty should result in immediate termination. Disruptive, incompetent or apathetic employees unwilling or unable to improve their manner or performance should also go. The consequences of a bad hiring decision, however, should not be compounded with a poorly executed termination strategy.
Do the homework; make sure the termination is warranted and that any alternatives with the potential to correct the problem have first been explored. Should that fail, or should the issue be so egregious that no other option is possible, the resulting termination should be handled in a manner that will bring relief to the company rather than an escalation of the problem.
The following checklist can be used to ensure that due diligence has been applied in coming to a final determination on whether to save or sever an employment relationship.
- Do you have employment contracts in place that dictate the terms and limits of employee terminations?
- Have you considered whether termination is the best available option to address the issue?
- Have you considered the cost of termination vis-à-vis loss of experience, customer or supplier impact, staff impact, workloads and cost of replacement?
- Are you making a rational and considered decision or an emotional one? Never terminate in the heat of anger or confrontation; step back, cool down, consider the impact and options before making the final decision.
- Have you, as the employer, done everything reasonable to help the employee be successful in their job?
- If the issue is behaviour or performance related, was progressive discipline applied, was the employee advised of performance deficiencies and required improvements, and were the consequences for non-compliance explained?
- If the termination is behaviour related, are HR policies in place and properly communicated to employees to advise against such behaviour?
- If the termination is performance related, was the employee provided with a job description clearly outlining their role and deliverables? Was adequate training and support given? Was the employee presented with a candid performance review with corresponding performance counselling to help promote change and improvement?
- Is the employee being terminated for behaviour or performance issues that are tolerated or condoned in others?
- If terminating an employee for contravening policy or for dishonesty, have you conducted a thorough and impartial investigation and considered the findings with an open mind?
- If terminating for shortage of work, will you be replacing the position in the near future with someone younger and/or lower paid? If so, you could be inviting legal action.
- Are you confident that the employee slated for termination is the problem, not just a symptom?
- Are you in contravention of any aspects of the Employment Standards Act (ESA) or Human Rights Code in the normal conduct of business that could provide grounds for complaint by a terminated employee? If so, take the steps necessary to correct the situation before risking a Ministry investigation.
- If terminating an employee without cause, are you adhering to ESA guidelines as a minimum standard for termination and severance obligations?
- If terminating for cause, have you consulted with an employment law specialist to determine the strength of your position based on the evidence supporting the termination?
- Have you consulted with an employment law specialist to craft an appropriate termination letter and subsequent settlement offer (if appropriate) that will mitigate your termination costs and the risk of wrongful dismissal litigation?
- Have you considered any commissions, bonuses, taxable benefits, health benefits, length of service and age impact in drafting the settlement offer?
- Will you provide a reference as part of the settlement, and if so what will you include in the letter?
- Is the employee protected by a collective agreement? Has the union been consulted? Have you complied with all procedural requirements under the collective agreement? Are you prepared to defend a grievance?
As an employer you have the right to fire any employee at any time, with or without cause, and the moral authority to act in the best interests of your company. You will always have the final say on terminations as long as you are willing to pay for the privilege.
The question you need to ask before severing employment, however, is “Is this the right thing to do?” Telling an employee “You’re fired!” without first contemplating other means of resolution or assessing the risks and potential consequences of the action may be fine for Reality TV, but such thoughtless or knee-jerk decisions usually backfire in real life.
Terry Conley is the president of BBCi Performance Management Group. We are HR advisors to SMBs in Ontario.
You can email him at [email protected]