Great television doesn’t translate into great policy

Donald Trump’s style in the hit reality show The Apprentice won’t fly in the workplace

"You’re fired." Real estate tycoon Donald Trump’s catch phrase has captured the attention of the world. Millions of viewers tune in every week to watch The Apprentice, a hit reality show where individuals compete for the ultimate prize of being Trump’s apprentice.

Contestants are put into teams. Winners get a prize, the losers earn a trip to the boardroom to explain why they lost. Every week, at least one person is “fired.”

In Trump’s termination process, he and two of his advisors confront the contestants, pummelling each of them with questions about their performance. He sends the contestants out while he deliberates about who shall be terminated. The contestants return to the boardroom where he hands down his decision, listing all of the reasons why he is about to terminate one of them. The drama and the tension build until he makes his final choice.

While this makes for great television, it is not, nor should it inspire, a great way to terminate someone’s employment. If employers in Canada were to adopt Trump’s method, they would undoubtedly be on the hook for significant damages. Trump’s television terminations are insensitive and callous, making the employee’s firing much more difficult than it needs to be.

Trump’s 10 biggest termination mistakes

In the course of his terminations, Trump commits a number of serious mistakes. Here’s a look at 10 of the most serious errors Trump makes that should never be emulated in a Canadian workplace:

•The person being terminated is brought into a boardroom where she is with her peers and is being terminated in front of her peers, not in private just with Trump.

•She is being terminated not only in front of her peers, but also with two of Trump’s advisors watching, thereby creating a firing-squad like atmosphere, rather than simply being in front of one advisor and Trump.

•Prior to the termination, all of the team members know that one of the select group being pulled into the boardroom will be terminated, instead of the termination being kept secret amongst only senior management.

•The person being terminated is advised of all the things she did wrong, but is never given a warning and the chance to correct the behaviour before being fired.

•She is terminated for cause where there is likely no legal cause for her termination.

•She is terminated without being provided what she is entitled to under applicable employment standards legislation.

•She is terminated without reasonable notice of the termination or compensation in lieu of notice pursuant to the employer’s obligation under the common law.

•She is not provided with a letter of reference, outplacement counselling or anything which will assist her in the transition to new employment.

•She may have been enticed to leave secure employment to be “employed” with Trump, which would increase Trump’s liability when firing her.

•An employee terminated in this manner would likely be entitled to significant Wallace damages. That’s because she was ostracized in front of her peers and Trump’s advisors, terminated with cause when there was no cause and made to feel worthless. This is exactly what the Supreme Court of Canada warned against in its decision in Wallace v. United Grain Growers Ltd. (For more on Wallace, click on the “related articles” link below.)

If any of the contestants on The Apprentice had been real employees, and had sued for wrongful dismissal, it is likely that each would be successful in a claim for Wallace damages. A court would likely not hesitate in lengthening the notice period because of Trump’s actions. In fact, a firing handled like Trump’s television ones may even result in a successful claim for mental distress damages.

Steps employers should take

To avoid creating a scenario like Trump’s boardroom, it is recommended employers:

Keep the termination a secret: Ensure the termination is only known to those terminating the employee or those involved in the decision.

Keep the termination small: Bring the person being terminated into a room without anyone else except another senior manager as a witness. Never terminate someone in front of her colleagues.

Do not allege cause: If an employer does not have cause, it should not allege it.

Do not list: Don’t get into a long list of what the employee has already done wrong.

Have a severance package ready: Have a package ready for the employee, including provision of entitlements pursuant to employment standards legislation and under the common law.

Provide transitional assistance: If the employee is not terminated for cause, consider providing transitional assistance to find another job, including a letter of reference and outplacement counselling.

Know the person’s employment history: The employer should have accounted for this person’s particular circumstances, especially what happened before she was hired. If the employee was lured away from secure employment, take that into account.

Be sensitive: Being fired is one of the most difficult things for an individual to hear and it is usually a major blow to self-esteem. Those doing the firing should remember the golden rule and treat the worker as they would want to be treated in a similar circumstance.

The Apprentice is only a television show, but if Trump’s methods become a reality for employers, it will cause them significant grief. When terminating someone’s employment, all the employer has to do is act in good faith and not make the termination more difficult than need be.

Natalie MacDonald is an associate with Grosman, Grosman & Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or [email protected].

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