So how do you ensure best practice when it comes to ending an employee’s tenure? Here, one leading labour and employment lawyer told HRM about the most common mistakes made by employers and offered some expert advice on getting it right.
“The number one problem in almost all cases comes from employers not having a proper employment contract in place,” reveals Catherine Coulter, adding that a sub-par contract can bring about a whole host of problems.
According to Dentons legal counsel Coulter, when an employer is making the decision about how to terminate an employee, a proper employment contract and the termination provision within is the most valuable guide available.
“If you’ve got an employment contract with a termination provision, and it’s a valid provision, and the agreement was signed before the employee started or the employee received some sort of fresh consideration for signing during the course of employment – like a signing bonus – then that typically addresses most problems that an employer will find themselves in as a result of the termination,” she explained.
“If you don’t have that contract in the first place, or it’s not properly entered into, or it’s not properly drafted, or it doesn’t have a termination provision, then you get into this scenario of not always knowing what the proper notice or pay in lieu of notice is to give to the employee,” she explains, “and that’s where most of the problems arise – in not providing sufficient notice.”
Treating all terminations the same
Another common mistake, according to Coulter, comes when employers treat every termination the same.
“If, as an employer, you treat a 25-year-old administrative assistant the same as a 49-year-old middle manager then you’re going to run into problems because the courts certainly aren’t going to look at them the same way in terms of determining what the notice is,” she stressed.
“Again this comes back to having a proper employment contract to guide you in terms of giving proper notice but if you don’t have the contract or there’s a problem with it, then you need to figure out what the appropriate notice is and for that you need to make sure that you’re not treating all of your employees in the same way on termination,” she explained.
The first three rules, Coulter acknowledges, are closely interrelated but it’s the final rule that she claims is her “golden rule.”
The golden rule
“When you don’t have the best interests of the employee at the same level as your own interests, you can get yourself into trouble,” she warns. “For example, you can get yourself into trouble by refusing to provide a letter of reference and that can come back to hurt you if the employee can’t find another job and they go on to mitigate their damages.”
Coulter also reveals that employers could be subject to some sort of counter claim if they make defamatory comments about the employee to others, while they’re in the process of leaving.
“My golden rule, which I think is a good golden rule for all employers, is to treat your employees as you would want them to treat you if you were in the same circumstances,” she told HRM.
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Firing employees is often HR professionals’ least favourite part of the job but it’s also one of the most important – getting a termination wrong can seriously damage employee relations, have a lasting impact on staff morale and it can even open your organization up to significant legal risk.