Companies contending with the difficult process of dismissing an employee must be very careful about their actions, or face potentially serious legal consequences.
Being proactive about maintaining accurate and detailed employee records over a period of time is essential, even before a termination is expected, says Pieter Bakker, an associate lawyer with Emond Harnden LLP, an Ottawa labour and employment law firm.
“Employers typically only start to think about termination when they’ve made the decision someone might no longer be a good fit, or maybe when a final event has transpired, and at that point it’s a little too late,” he explains. “So make sure that your documentation is ongoing.”
Specific, transparent documentation is vital
Proper record keeping should include details such as conduct and attendance, communication of employee expectations, monitoring of performance, feedback from supervisors, any warnings, investigations and discipline, and meeting dates.
The principles of progressive discipline, whereby an employer uses a structured, gradually escalating approach to correct performance or behavioural issues prior to resorting to termination, must also be clear. This can prevent later allegations from a former employee that their termination was done in bad faith, says Bakker.
“It’s important that you document the steps that came before the termination, so you don’t suddenly have to present an ultimate penalty for a single incident on record,” he stresses.
If there is a performance issue or incident, documenting the employer’s intervention can help illustrate the existence of relevant employer-employee communication. This can also aid with the reliability and credibility of witnesses if a dismissal ends up in court.
This documentation, Bakker says, must be very specific. “Saying that an employee wasn’t performing well may make sense to the author of the note, but not to any outside party. You have to be concrete and describe specific facts,” he explains. “For example, on this day, this happened, the employee’s role was this, and then describe what went wrong.”
The employee should also be given access to that information. “It always reflects well on an employer if they’ve given the employee an opportunity to at least take note that there is a written document in place. Giving the employee an opportunity to sign off on the document on their record goes a long way,” Bakker adds.
Employee records must be maintained in a secure, organized, and retrievable location so they can be easily recalled should a dismissal end up in court. Otherwise, trying to reconstruct or find documentation spread out in different places can be very difficult.
Always be sure to deliver a precise, truthful message
During a termination meeting, a script can help employers ensure they deliver a precise and truthful message. Any mistruths about a termination can prove detrimental to the employer if the case ends up in court, Bakker warns.
Detailed notes should also be taken during and after the meeting. “Courts value notes taken contemporaneously, and potentially even signed for acceptance or having been viewed by the employee,” he says.
Employers must also be careful about the timing of a dismissal, such as avoiding letting people go just before or after the holiday season, or if a medical issue is involved.
“Timing is often brought up in human rights complaints to try to prove that a person’s disability might have played a role in the reason for termination,” says Bakker.
“That risk is typically mitigated with excellent documentation, if it allows the employer to prove this was a long time coming, and the termination actually had nothing to do with the person’s disability.
“Timing is crucial,” he stresses.
The importance of in-person termination meetings
- Terminating an employee is a very sensitive and personal matter, so the termination meeting should be held in person if feasible.
- It’s also good practice to have at least two employer representatives present, including a human resources staffer with a neutral perspective.
- That’s important, because if an element of the meeting is later contested, witness evidence can be provided about what was said and how it was delivered.
