Twelve Tips to Tackling Terminations Tactfully
“Mike has been working for me for five years and I’ve been putting up with his less than stellar performance for most of that time. Now I have a problem. The rest of my employees wonder why Mike is still here and why I won’t do anything about him. I have repeatedly given him chances, taken tasks away from him and/or given him easier tasks. I have talked to him numerous times about being late, his excessive absences and his inability to delegate. I eventually gave up. I should have fired him a long time ago, but now I have to and I don’t know how to. I wish there was an easy way to make this problem go away!”
I see this scenario played out repeatedly in my consulting work. As owners and leaders of a business, you tend to shy away from having difficult conversations with your staff so you end up like the owner described above. Terminations can become land mines, if you are not fully prepared and knowledgeable about the law and the process. The following may help you be better prepared:
Understand the law about what you have to pay out when you terminate. The Employment Standards Act (ESA) clearly spells out your legal obligations. But remember, the amounts prescribed by the ESA are the “minimum requirements” and you can find yourself paying a great deal more than the minimum.
Understand the difference between termination “for cause” and termination “not for cause”. Proving “cause” is extremely difficult unless it’s a clear cut case of stealing or wilful damage to property, etc. Always seek advice from a Human Resources expert or an employment lawyer.
Determine what you believe is fair termination pay. While you might be tempted to only pay what is prescribed in the ESA, there are other factors that the law takes into account when deciding on “fair termination pay:” Age, education, skills, and market conditions all must be taken into account.
Review the employee’s conduct and review the measures you may have taken to correct performance. Have you documented the discussions? Is the employee aware he/she may be terminated? Is it worth sitting down one more time and working with the employee to improve the employee’s performance?
Consider how much it costs you to keep the employee vs. terminating the employee. Is the employee a good investment or a liability to your business?
You can choose to have the employee workout the “notice period”, but this can often be disruptive. So if you choose to have the employee leave immediately, remember, you must pay out the ESA minimum payment within seven days of the employee’s last day of work.
The Record of Employment must state the reason the employee is no longer employed. “Terminated” means the employee will not be entitled to Employment Insurance. Employees have the right to appeal your decision to state “Terminated” with the Employment Standards branch.
Treat the terminated employee with dignity and respect. Courts do not look favourably on employers who are punitive and insensitive to employees they are terminating.
Timing is important. Terminating an employee at the beginning of the work week is best as it allows the employee a chance to see his banker, his doctor, his lawyer, etc. Offer the employee a ride home, or taxi fare as a distressed driver can become a danger to other drivers. Offer to have the employee come back after hours to pick up personal items.
Consider what you will say or how you will handle a request for a reference. It’s difficult as you want the employee to find another job quickly, but you have to weigh up the fact that you can be held liable for giving an untruthful reference.
Always have the employee sign a Release & Indemnity which protects you from the employee accepting money and then suing you later. However, you can only require this under specific circumstances and by encouraging the terminated employee to seek independent legal advice.
Communicate the employee’s departure to the rest of your staff but notify your IT department first to ensure Company information is secure. You do not have to go into the reasons for the termination, but merely inform your staff the person is no longer employed with your organization and you will be either delegating his/her duties to others or you will be hiring or have hired someone to replace the terminated employee.
Terminating an employee doesn’t have to wear you out or down. We’re here to help.