Avoid unnecessary drama and costly law courts by following the below tips when managing termination.
- Care: Treat employee fairly, with dignity and respect, using care and consideration, even in a termination situation.
- Record: You want to demonstrate that you had been giving the employee ample opportunity to improve following warnings, agreements and progressive disciplinary action. Make sure you keep all written records of conversations, agreements, and observations about the employee performance challenges, and the time and meetings invested in counselling and disciplinary actions.
- Comply: If the employment is ended for reasons that are discriminatory and unlawful or if the termination occurs when, as an employer, you fail to follow your written procedures for employment termination, the terminated employee could argue that she/he was victim of a wrongful termination and claim damages. Ensure that you follow your policies and that your employee handbook is written in terms generic enough to cater for all types of termination situation and have employees sign an ‘employee handbook statement’ confirming that the written documents offer guidelines, not a contract.
- Formalize: After all written disciplinary actions have proven ineffective and in compliance with regulations and written policies, write an official termination letter to the employee you will terminate. Adapt this template (ADD LINK) for example. Delivering the news of termination of employment to an employee should be done in person. You should call for a meeting with the employee and present the letter at this occasion before you finish the meeting. Should the employee not be physically available, consider exceptionally using text messaging, a phone call or mailing the letter. In some jurisdictions, in complement to the formal letter and the payment slip, you may have to deliver a statement of service and a separation certificate.
- Make assumptions: make sure you give enough time for employees to comply with required adjustment and gather enough evidence before you trigger the termination process. To do so, check where you stand on the below questions listed by the HR consultancy firm Workplace Law in her ‘Best Practice Guide to Termination’ (2014):
- Have you addressed repeat performance or conduct issue with the employee previously and given them a “fair go” to improve?
- Have you documented your previous efforts in warning letters?
- In each disciplinary process – did you give the employee an opportunity to respond to the allegation and/or explain themselves? Did you take that response or explanation into account when making a decision?
- Have you considered giving the employee an opportunity to make submissions to you as to why you should not terminate the employment? If so, have you considered those submissions?
- If this is a serious misconduct issue, is it the kind of matter described as serious misconduct in local Fair Work Regulations? If not, consider termination on notice, not summary dismissal as an outcome.
- Have you provided the employee with an opportunity to respond/explain themselves?
- Is there a valid reason for the termination of an employee’s employment, such as ongoing poor performance, unsatisfactory conduct and/or behavior or genuine redundancy?
- Have you told the employee that termination of employment is a possible outcome of the process and that they should consider their employment at risk?
- Talk around the topic: Avoid mindless chat as you both meet. Handle the situation professionally and stay to the point, even when you face shock and denial, pleading and tears, or potentially violent anger.
- Miss an opportunity to improve your business: Reflect with your leadership team on what could have been done to avoid having to terminate and to mitigate future terminations.
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