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Softening the blow

Terminating employees a difficult process that needs careful managing

By Jeffrey R. Smith

When it comes to dealing with an employee who just isn’t working out, for whatever reason, the simplest and most direct solution is termination of employment.

While Canadian employment law doesn’t make it easy to dismiss an employee for cause — assembling evidence to show just cause can seem like scaling Mount Everest at times — any employer can dismiss any employee with proper notice or compensation.

But an employer can still have problems getting rid of an employee even with the right compensation if the dismissal is handled poorly — not to mention the potential disenchanting effect on other workers or staff involved in the termination. So it can be important for an employer to be able to kick someone to the curb without looking like it’s simply kicking her to the curb.

It may not be easy for a manager or HR to write a termination letter, which is often why companies have a template. However, the hardest part would be for whomever has to handle the direct at of termination, face-to-face with the employee being cast out. Both the letter and what is said at the termination meeting should be carefully worded, because the last thing an employer wants is to be saddled with an accusation of acting in bad faith in the manner of dismissal.

This could lead to extra damages in a wrongful dismissal case.

A lesser discussed element could be the effect of a poorly-handled termination on the staff who have to implement it and live with the aftermath. If a company has an ill-advised way of handling things and a manager or HR person has to follow the process, this could lead to stress or disengagement on the individual’s part.

And if word of the process gets down to other workers who are still around, the same could happen to them or even, in a worse-case scenario, lead to the possibility of contributing to a poisonous work environment.

Terminating someone’s employment is considered the capital punishment in terms of employment law, and courts and arbitrators recognize the importance of a person’s job can be to her identity and the power imbalance that exists in the employment relationship in favour of the employer.

Therefore, they will look for any potential abuse of that power and attempt to balance things more in the employee’s favour. So even when an employer thinks it’s doing everything right in terminating the employment relationship, it should still proceed with caution.

If not, what should be a final goodbye could turn into the beginning of a long and ugly process.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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