Terminations: Seating the 800 Pound Gorilla

April 21st, 2005 by

In working with thousands of employers across the country, one of the refrains we have heard all too often after a lost time injury is: “I was planning to fire him, but I never got around to it.” We advise our clients to terminate employees who are not working out before they get hurt. After an injury, workers are protected by workers compensation statutes which presume that any termination is simply retaliation based upon the injury. Workers compensation is not a good way to end the employment relationship.
But how do you terminate people? Termination is full of risk. It’s not easy. It’s not comfortable. Indeed, it is tempting to overlook poor performance, in the vain hope that the problem will go away. All too often, the problem simply migrates to a company’s comp loss run.
Michael Fitzgibbon, an attorney based in Toronto, has put together an interesting blog on safe termination. He raises a number of compelling issues that are worthy of attention, especially for smaller employers who lack a dedicated human resource department to handle such issues. Here is an abbreviated version of Fitzgibbon’s pointers:
1. You can’t eliminate risk you can only manage it – you cannot eliminate the risk that an employee will sue. All you can do is position the company in the best light in the event that the employee does sue.
2. It is personal – While the termination should not be personal for the manager, don’t ever think that it’s not personal for the employee – it is.
3. It is emotional – Never lose sight of the fact that deep and strong emotions are at play here. A termination always affects people, even when you suspect that the employee knows its coming.
4. Never lose sight of the fact that you have initial control – In most cases, and while it may sometimes feel otherwise, the employer is in control of the pre-termination process.
5. Use employment contracts or letters of offer – Many employers wish they had these carefully drafted and properly entered into employment contracts in place when the point of termination comes and they hear the bad news about how much, at common law, they will likely be required to pay the employee.
6. Do your homework – If there is something to investigate, do so, thoroughly and completely. Document your investigation through careful notes (dated, signed etc…). Keep the notes and other file material in a safe and secure location and preserve the evidence. If you’re going to terminate for just cause, then make sure you have the goods.
7. Get advice – This may seem self-serving (as Fitzgibbons is an attorney) but it’s generally better to be proactive and get some legal advice before carrying out the termination. It’s generally easier to place the pieces on the board than to pick them up off the floor.
8. Prepare, prepare prepare – here’s a partial list of things to think about (by no means is this complete):
* Try to get into the head of the employee – who is this person? what’s he/she going to be concerned about? how can we best deal with this individual? Resist the cookie-cutter, one size fits all termination approach.
* Assuming you’re terminating without cause, and are providing a severance package, what will that package be?
* If you’re terminating for just cause, how much detail should you provide the employee? Have you done your homework?
* In most cases, a termination letter should be prepared and available at the termination meeting along with all other documents (i.e. a release) that the employer will require the employee to sign. Give the employee reasonable time to obtain legal advice.
* Who will attend the termination meeting? Who will do the talking?
* Be sensitive to issues of location (you want a private location) and timing (you want to carry out the termination at a time when the office is quiet). In short you want to avoid the employee having to take the long-walk through the office past co-workers and customers carrying a box of personal belongings.
* What day of the week? There’s no rule here, but Friday terminations should be avoided, if possible, because the employee will not be able to get legal advice over the weekend and will turn to anyone with an opinion (typically family who will supply well meaning, though possibly less than qualified, “legal” advice with the effect that, come Monday, the employee will be all fired up and itching for a fight).
* Does the day on which you are intending to carry out the termination have any significance for the employee (i.e. it’s his/her birthday)? If so, think of another day.
9. Don’t let the meeting get out of hand – Be firmly and politely decisive. Once the business has committed to terminate, the sole purpose of the meeting is to carry out that decision. Keep the discussion focused.
10. Terminate the employee as if he/she was your best friend
11. Don’t say or do anything that you wouldn’t want to have published in your local paper
12. Eat crow while it’s young and tender – Translation: be fair and reasonable (that’s not the same, by the way, as writing a blank cheque to the employee).
For a little more detail, visit Fitzgibbon’s weblog. In the meantime, this might be a good time to review your team roster. Make sure you want these people with you and they want to be with you. When the employment relationship is not working out, it’s best for all parties to end it. As Fitzgibbon’s blog points out, how you end it will go a long way to determine whether the termination is truly the end, or just the beginning of a litigation nightmare.