LLOYDMINSTER, Saskatchewan — In my many years of business, from time to time it was necessary to discharge an employee. I found it difficult the first time and equally hard the last. It is a safe assumption that if you must discharge a member of your staff, particularly one who has been with you for some time, it would be equally difficult.
When this person accepted a position in your drycleaning plant, both parties were optimistic. However, with some, not everything works out as intended and there must be a parting of the ways. Some may go amicably, some will be fuming, while others threaten legal action for wrongful dismissal. No matter which, it is always engenders intense emotions for all parties—you, the discharged employee and those who remain.
The potential for litigation makes this situation still more onerous. If not handled with discretion, it could generate a costly-to-defend lawsuit. This could also apply to “constructive dismissal,” whereby the creation of an oppressive environment forces the employee to leave. Oversights made before, during the exit interview and after the discharge can significantly affect both employer and employee.
TERMINATING FOR JUST CAUSE
“Just cause” means that the employer has a valid reason to fire this person. The reasons are numerous and would include such infractions as unsatisfactory workmanship; incompetency; excessive absence/lateness; inappropriate behavior; sexual misconduct; usage of drugs or alcohol on the job; being belligerent to customers and other staff members; and so forth.
Too often, it is easy to assume that the problem(s), if sufficiently ignored, will just disappear. This is wishful thinking. Problems usually don’t go away. If anything, in most cases, they are exacerbated over time.
WRONGFUL DISMISSAL
Today’s labor laws appear to be structured in favor of the employee. One only has to read the multitude of advertisements by law firms to see that none are for the benefit of the employers. However, this does not limit your right to discharge an employee for a good reason or for no reason at all such as dissatisfaction with this person. Just ensure that the discharge is not prejudicial or could be classified as “wrongful dismissal.” This would include discrimination on the basis of race, sex, religion, age, nationality or sexual orientation. You cannot fire an employee who filed a discrimination claim, refused to commit an illegal act, or has a statutory right.
However, the law is not unfair. It provides the employer the opportunity to prove that the dismissal was not wrongful or prejudicial. Still, be careful! Methodically document the reasons and the steps you have taken in bringing about this action.
If involving an older person or one who has been your employee for several years, it is wise to consult with your lawyer and lay out the plan. You may have to defend your action before a judge. You might not be guilty of wrongful dismissal but the cost of proving your innocence could be exorbitant.
If you are sued, never take with you into court any notes that could be construed as having even the slightest hint of prejudice. Better yet, don’t take any paper of any kind. Some years ago, when defending a major project foreclosure, opposing counsel snatched my sheath of notes and used some of the information therein against me. The worth of my testimony was somewhat reduced. Destroy any such data that may be in your files.
BEFORE TERMINATING
Discharging an employee should never be a “shoot from the hip” reaction to a specific situation. It should be a well-thought-out yet timely process. Still, don’t delay it unnecessarily.
When operating a real estate and business appraisal practice, an employee appraiser struggled with appraisals, and I struggled with him for about six months. Had this chap been discharged much earlier, I would have done both of us a favor. There was no way to correct his poor performance. He had the desire to be an appraiser but lacked the ability. Good at book learning but poor in practice! When in a similar situation, you must satisfy yourself that you have taken all steps to ensure that terminating this employee is the correct action and is best for all.
Information in this article is provided for educational and reference purposes only. It is not intended to provide specific advice or individual recommendations. Consult an attorney for advice regarding your particular situation.
Check back Monday for the conclusion!
Have a question or comment? E-mail our editor Dave Davis at [email protected].