How to conduct a dismissal meeting
Mishandling a termination meeting can result in additional liability
Jan 17, 2012
By Stuart Rudner
As an employment lawyer, I often advise clients regarding their legal obligations in the event of dismissal.
Typically, this will involve an assessment of the amount of “notice” the soon‑to‑be‑dismissed employee is entitled to, as well as determining the payments and benefits required to continue. Once that has been assessed and the employer has determined what it intends to offer, an appropriate letter of dismissal is prepared. However, it’s also important that employers and their counsel discuss the mechanics of the dismissal meeting itself. Failure to properly plan for this important meeting can result in additional liability.
While it may seem trivial, it’s important to consider when and where the meeting will take place. First of all, I advise all of our clients to dismiss individuals in a face‑to‑face meeting whenever that is possible. If the employee refuses to meet, other alternatives can be considered. Otherwise, a meeting should be scheduled, at which time the employee will be advised of the dismissal and provided with whatever documentation has been prepared.
With respect to where and when, it’s important to consider the employee’s feelings and avoid any unnecessary embarrassment. Publicly calling the individual into a centrally located boardroom in order to meet with the head of HR is certainly not subtle or advisable. Similarly, dismissing them and then directing them to pack up their belongings while all their colleagues look on is not appropriate. Dismissal meetings should take place at the end of the workday, or at some other time when others will not be present. They should also take place in a private setting. Where this is not possible onsite, the meeting can take place at a neutral location, so long as there is appropriate privacy.
My focus on protecting the feelings of the dismissed employee is based not only upon human consideration, but also legal principles. It’s well established that employers have a duty to act in good faith in the course of dismissal. While being dismissed is often extremely upsetting in any circumstances, if an employer proceeds in a manner that exacerbates the situation and causes unnecessary embarrassment, stress or upset, then courts may well find the duty to act in good faith was breached.
During the dismissal meeting, be direct and to the point. On many occasions, employers prefer to have either an employment lawyer or an HR professional conduct or at least participate in the meeting. Either way, the meeting is not the time for questions and answers, debate or discussion about how the situation could be improved. The employee should be clearly told the decision is final. Representatives of the employer should avoid any argument or debate regarding the reasons for dismissal.
On that issue, historically the law has been an employer did not have to disclose the specific reason for dismissal. However, the duty to act in good faith was defined by the Supreme Court to include a duty of honesty. It remains an open question as to whether that duty of honesty creates an obligation to disclose the reason. In a dismissal without cause situation, I usually advise clients not to discuss the reasons. However, where the dismissal is for cause, employers should briefly review the reasons for the decision and ensure the employee has no basis upon which to claim they were dismissed for cause without ever being told why.
After advising the employee of the decision and the reasons (if necessary), the meeting should be brought to a swift conclusion. If the employee has any company property, it should be collected. The employee should be offered the opportunity to gather personal belongings or, if it is more practical, the employer can offer to ship them separately. The employee should be able to leave the meeting without being paraded in front of colleagues and causing further embarrassment and upset. In most situations, it’s unnecessary to escort her out in a manner suggesting she was guilty of criminal conduct.
If the employer intends to offer outplacement counselling or other career assistance, it’s often useful to have a representative of the outplacement firm at the meeting. The employee can be “handed off” to that representative, who can look after collecting company property, describe the career assistance being offered and explain next steps.
Obviously, the dismissal meeting is a critical step. Employers should ensure it’s handled properly and that, regardless of the reason for dismissal, the employee is treated with respect and dignity. This can help the organization develop a reputation as an employer of choice, and can also help to reduce potential liability arising out of the manner in which the dismissal is carried out.
Stuart Rudner is a partner with Miller Thomson LLP in Ontario, specializing in employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (905) 415-6767 or firstname.lastname@example.org. You can also follow him on Twitter @CanadianHRLaw, join his Canadian Employment Law Group on LinkedIn, and connect with him on Google+.
Stuart Rudner is the founder of Rudner Law (RudnerLaw.ca
), a firm specializing in Employment Law and Mediation. He can be reached at email@example.com
, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.