How snap termination decisions can put an unexpected dent in the corporate wallet and the company’s reputation.
Given today’s pressures on line managers to produce, coping with difficult and time-consuming employee situations is not always a priority. This results in scenarios that are often concluded with a hasty firing, exposing the company to hostile scrutiny by the employee’s counsel and potential negative opinion from remaining employees. In addition, if a discharged employee is reinstated following a grievance hearing by an arbitrator because of sloppy management procedures, there’s likely to be tremendous awkwardness around the work site for all parties.
Educating managers
HR can add value for line management by educating managers on the risk associated with impromptu, poorly reasoned terminations and protect all parties from unwelcome distractions away from business results. There are times when HR has to stand up and be counted, and a potentially hasty and risky termination is one such occasion.
HR can add value for line management by educating managers on the risk associated with impromptu, poorly reasoned terminations and protect all parties from unwelcome distractions away from business results. There are times when HR has to stand up and be counted, and a potentially hasty and risky termination is one such occasion.
Just cause
Many line managers have misconceptions as to what constitutes “just cause.” It is the responsibility of the HR department to educate line managers on legal grounds for employee dismissal.
Many line managers have misconceptions as to what constitutes “just cause.” It is the responsibility of the HR department to educate line managers on legal grounds for employee dismissal.
Generally speaking, any conduct that breaches the employee’s basic contractual obligations to the employer may constitute grounds for “just cause” dismissal. In practical terms, this means any willful and intentional conduct such as persistent harassment, obvious disloyalty, insubordination, unsupported absenteeism, etc. In these cases, no severance or notice payments are given to the employee.
Simply put, an employer provides a workspace, a paycheque and some rules around expected behaviours. The employee provides brain and/or brawn and is expected to abide by this set of rules. The result is a company’s product that generates revenue and business continuity. When these rules are broken, each party can expect a consequence. Often the consequence is sorted out by reasoned dialogue, some remedial action such as training, and life goes on, with each party bearing the past in mind, but looking towards the future.
Matters go “off the rails” when the reasoned dialogue does not take place, tempers flare, words not really meant are spoken, and the party with the eventual power goes on a “trip.” The employee is terminated allegedly for cause, but really without any solid factual grounds.
Sometimes, HR is involved in the pre-firing scrum of charge/countercharge and doesn’t take the appropriate steps to slow the process down authoritatively to get to the heart of the matter. Sometimes this is because HR is always perceived as a roadblock and overly cautious; sometimes, HR doesn’t know what should be done and just joins the posse; sometimes HR doesn’t act with conviction and warn the employer about the real implications of what is likely to go very wrong, very quickly.
Where HR goes wrong
The consequences for HR’s failure to adequately educate and counsel line managers in employee dismissal can include:
•a time-consuming legal challenge by the employee;
•distractions away from the job by those managers inevitably caught up in defending their hasty actions;
•negative publicity, possibly affecting clients, shareholders, other employees and the local community; and
•additional costs of a court-ordered severance payment and legal bills.
The consequences for HR’s failure to adequately educate and counsel line managers in employee dismissal can include:
•a time-consuming legal challenge by the employee;
•distractions away from the job by those managers inevitably caught up in defending their hasty actions;
•negative publicity, possibly affecting clients, shareholders, other employees and the local community; and
•additional costs of a court-ordered severance payment and legal bills.
Onus
The onus of proof will be on the employer to establish just cause for dismissal of the employee. While the standard of proof is not as stringent as in a criminal case, an employer still has a high civil case standard to meet when defending an action from a disenchanted former employee.
The onus of proof will be on the employer to establish just cause for dismissal of the employee. While the standard of proof is not as stringent as in a criminal case, an employer still has a high civil case standard to meet when defending an action from a disenchanted former employee.
Line managers must be made aware that the following are factors that should be taken into consideration in all termination situations:
•the employee’s prior work record and length of service;
•degree, if any, of provocation;
•the degree to which the employer allowed the conduct to continue without comment or action, although not condoning the behaviour;
•impulsive or pre-meditated action — did the employee understand the nature of behaviour;
•uniform enforcement of rules;
•seriousness of offence; and
•other relevant circumstances, including whether the penalty is appropriate to the nature of the offence.
•the employee’s prior work record and length of service;
•degree, if any, of provocation;
•the degree to which the employer allowed the conduct to continue without comment or action, although not condoning the behaviour;
•impulsive or pre-meditated action — did the employee understand the nature of behaviour;
•uniform enforcement of rules;
•seriousness of offence; and
•other relevant circumstances, including whether the penalty is appropriate to the nature of the offence.
Notice and severance pay
If an employer provides notice and/or severance payments when alleging dismissal for cause, this may preclude the employer from winning a wrongful dismissal suit later on. Accordingly, while the employer may want to give the departing employee some offer of assistance, care must be exercised. It may be possible for an employer to provide an employee with payment while still protecting its right to assert just cause, if the offer explicitly states that it is being made on a “without prejudice” or an “ex gratia” basis. In extending such an offer, the employer is in no way waiving its right to later rely on just cause as the reason for the employee’s dismissal.
If an employer provides notice and/or severance payments when alleging dismissal for cause, this may preclude the employer from winning a wrongful dismissal suit later on. Accordingly, while the employer may want to give the departing employee some offer of assistance, care must be exercised. It may be possible for an employer to provide an employee with payment while still protecting its right to assert just cause, if the offer explicitly states that it is being made on a “without prejudice” or an “ex gratia” basis. In extending such an offer, the employer is in no way waiving its right to later rely on just cause as the reason for the employee’s dismissal.
Advising internal clients
Providing support for line manager on termination issues will require an examination of training and development needs within the HR department itself.
Providing support for line manager on termination issues will require an examination of training and development needs within the HR department itself.
An HR practitioner should take into consideration the following when advising an internal client on termination:
•insist on full disclosure now, not later when it’s too late;
•be prepared to disagree constructively with the proposed firing with supporting information, citing all the risks — document the “pros” and “cons” clearly;
•ask for an external legal opinion or the help of a mediator — the mediator is not concerned with who is right and who is wrong, rather finding an agreeable solution that allows all parties to move forward before the fact; and
•if overruled, at least ensure that the termination is conducted professionally. Learn from it and consider what to do next from a forward-looking HR policy application perspective.
•insist on full disclosure now, not later when it’s too late;
•be prepared to disagree constructively with the proposed firing with supporting information, citing all the risks — document the “pros” and “cons” clearly;
•ask for an external legal opinion or the help of a mediator — the mediator is not concerned with who is right and who is wrong, rather finding an agreeable solution that allows all parties to move forward before the fact; and
•if overruled, at least ensure that the termination is conducted professionally. Learn from it and consider what to do next from a forward-looking HR policy application perspective.
Tim O’Shea is the principal of HR Workplace Solutions, an Oakville, Ont.-based human resources consulting company (www.worksols.com). He is also a mediator with the Crown Attorney’s Office and The Etobicoke Conflict Mediation Team. He can be reached at (905) 842-5810.
