How to Legally Dismiss An Employee: A Checklist

Know Legitimate Grounds for Dismissal

There are a number of legal grounds for terminating employment, which include:
Misconduct: This ground can apply to issues in the workplace, such as abuse of power or discrimination. Actions that constitute theft, fraud or gross negligence may also be considered misconduct.
Poor Performance: If you have an employee who continually fails to meet the required performance benchmarks, then this is a valid ground for dismissal. Repeated failure to follow instructions, or complete a task to specification, can also be considered poor performance.
Redundancy: In some cases, it may be necessary to reduce staff numbers through redundancy. You should ensure that the correct rationale is provided , and that the selection process is not discriminatory.
"Some risks and issues with termination:
It is vital that you uphold the principles of natural justice when terminating employment. This is otherwise known as procedural fairness and includes the employee being made aware of the issue, given time to respond, and being judged by an unbiased party. Any disputes that arise should be dealt with by a third party.
It is also important that you have evidence that proves that the breaching action has occurred. For example, if you have an employee who is continually tardy, document their hours and make sure that this is stored in a place that is accessible by various members of management.
With any dismissal, it is a good practice to provide the employee with a genuine opportunity to respond to your position before proceeding with the removal. You must also ensure that there is no discrimination involved with the matter, or the termination may give rise to a claim.

Check the Employee’s Documents and Policies

Employers should conduct a review of their employment contracts and workplace policies in advance of a termination. Employment contracts can set out terms in relation to matters such as termination and dismissal options and procedures, notice (or pay in lieu) for termination, and the payment of severance. An employer’s obligations may be affected by policies pertaining to discipline and termination.
A termination may trigger an employer’s policy obligations. An employer should review its policy obligations in relation to the following:
If a termination has a discriminatory or reprisal aspect, obligations may arise under human rights legislation. If a termination is the result of or relates to the unionization or disunionization of a workplace, obligations may arise under labour relations legislation.

Undertake an Investigation

When conducting a termination, it is essential to conduct an internal investigation before jumping to the final step in the process. An employer would want to have evidence to back the termination if there is a subsequent dispute that arises concerning the dismissal. Gathering the facts and preparing for a defence are key in reducing the likelihood of a wrongful dismissal claim.
Investigations can assist in confirming a termination is appropriate to dismiss the employee. For example, in validating complaints of workplace harassment, evidence should be gathered and complaints should be detailed to demonstrate appropriate remedial action has been taken. In determining whether an employee has engaged in criminal conduct, the appropriate evidence would be obtained to support a decision to terminate the person’s employment.
In the case of employee misconduct, it is essential to document all incidents and gather evidence pertaining to the employee’s work-related duties. It is important to remain objective and unbiased when documenting employee misconduct.
Under the Alberta Occupational Health and Safety Act employers have an obligation to investigate any alleged accident, dangerous occurrence, or hazardous condition that occurs at the work site. The employer must ensure that the investigation is carried out by a competent person. The employer is also required to ensure that a written report is prepared following the investigation. Employers would want to keep this investigation report as part of an employee’s personnel file, and that the investigation is kept confidential.

Seek Independent Advice

Jackson Lewis professionals have focused expertise in the area of workplace law, and are ready to assist employers in assessing the strength of, and in complying with, employee termination and related workforce management issues. A consultation with either legal counsel or an HR professional with specialized knowledge in employment matters is critical to avoiding workplace disputes in the first place, and especially before they reach critical points of a termination of employment decision and its implementation that may lead to a lawsuit and costly litigation. A Lawyers.com survey identified displacement payments as "being the single largest expense in any employment litigation case." Consider these facts before proceeding to terminate employee: The costs of handling a workplace dispute after it has arisen pale in comparison to the cost of avoiding or preventing one from arising in the first place. Heeding the advice of an experienced employment law professional is the best way to avoid the potentially-interminable clock running on your business. Preventing a lawsuit could save you hundreds of thousands of dollars, and not instantly put your company in the public spotlight, inviting reputational damage, supervisor time to respond to inquiries and constituents, panic (employee departures, attrition, and quitting) among employees, loss of morale, and customer concerns.

Follow a Fair Procedure

A crucial step in ensuring that an employee dismissal is lawful is adhering to fair procedures. Treating employees in the manner with which one would expect to be treated is always a good start. If an employee is caught out in gross misconduct or theft, for example, that will often alleviate the need to adhere to a fair procedure (such a conduct will likely also constitute a fair reason for the dismissal). Fair procedure further requires that the employee be granted an opportunity to respond to allegations against him or her.
In the case of a dismissal ensuing from the attendance of a meeting at which the employee ‘says his side’ before being summarily dismissed, there must be a fair procedure followed in relation to the meeting. This can often involve conducting a fair disciplinary hearing which follows a step by step process and takes place after the alleged transgressor has been apprised of his or her rights and obligations in terms of company policy and the law (in the main).
This procedure must be fairly followed. In other words, the Disciplinary Code must be adhered to and made available for all employees to see. Reasonable steps must be taken to ensure that the employee whose position is in jeopardy understands the case against him or her. If the employee is incapable of speaking and understanding English for example, he or she must be assisted with that hurdle in order to avoid the HC finding that they could not make full answer and defence to the allegations. The employee must be informed of the allegations against them and must be specifically referred to those provisions in the Disciplinary Code and Code of Good Practice which are alleged to have been breached. Any video footage, CCTV footage or audio footage planned to be used in support of the charges must be presented to the employee in advance of the disciplinary hearing.
Employees must also be afforded a reasonable opportunity to respond to the allegations against them. It must be stressed that the correct approach is to adhere stricty to the Disciplinary Code and the CCMA disciplinary guidelines in respect of disciplinary hearings. As the CCMA guidelines make it clear, there is no "policy guidance" issued by DPSA or DOA in respect of disciplinary hearings that should be blindly adhered to. What is required is that the guidelines may be cited where they support a particular position taken in relation to a dispute.

Provide Notice and Severance

The provision of notice and severance to a terminating employee is often driven by the particular employment contract and may be further required by applicable legislation. For employees covered by an individual written employment contract, the notice period should be based on the terms of that contract. Many employment contracts set out a specific time frame for the provision of notice where an employee will be terminated without cause. If an employment contract sets out a different time frame for the provision of notice where an employee resigns, that provision will most likely be upheld. If an employer wishes to terminate the employee without cause rather than allowing the employee to resign on notice, the employer will need to provide to the employee the specified period of notice. Individual written employment contracts may also specify a time frame for the payment of a certain amount of severance upon termination without cause, in addition to the specified period of notice or pay in lieu thereof. If a written employment contract does not set out the terms of the contract, there will be a deemed contract. In that case, the employee will be entitled to seek common law reasonable notice or pay in lieu thereof. In most circumstances, the payment of the statutory minimum notice pay required under applicable legislation should be sufficient to avoid liability for common law reasonable notice. Applicable legislation in each Province or Territory may provide for differing statutory minimum notice pay. In addition , employment standards legislation requirements will differ for federally (ie banks) vs provincially regulated employers. In British Columbia, an employer is required to provide 1 weeks’ notice if the employee has been employed for 3 consecutive months to 1 year, as well as 2 weeks’ notice if the employee has been employed for 1 year to 3 years, 3 weeks’ notice if the employee has been employed for 3 years or more (with increments of 1 additional week for each additional year of employment) Payment of severance will depend on the length of employment, salary and other benefits provided by the employer. Again, British Columbia provides specific amounts of statutory severance based on the number of months of employment. The employee is entitled to a severance pay of up to 8 weeks’ pay for an employee employed for less than 12 months, as well as between 1-8 weeks’ severance for employees employed over 12 months, calculated as 1 week per year of completed employment. If the employee is entitled to severance as a result of an employment contract, then the employer should meet the terms of the contract. If the employer is attempting to avoid paying severance by having an employee quit on notice, there is a risk the notice period will be later deemed to be incorrect and the employee will be entitled to the additional severance sought to be avoided. As a result, even if the employee has a written employment contract that sets out the terms of notice and severance in the event of a termination without cause, Canadian employers would be wise to employ the practice of paying the appropriate severance.

Keep Records

While I may be preaching to the choir here, no guide to lawful termination would be complete without reminding employers that the single most effective way to insulate themselves from a lawsuit is to have an abundant, complete, and thorough paper trail supporting the reasons for the termination. This means detailed records on the employee’s work performance (or lack thereof), discipline history, performance appraisals, progressive discipline, attendance, tardiness, and other areas of any concern. It also means records on complaints by supervisors and managers about the employee or other employees about the employee. The more you document at the time of the employee’s employment, the better. It is the proverbial ounce of prevention being worth a pound of cure.
Having a complete paper trail detailing the employer’s reasons for the termination is extremely helpful for defending any future lawsuit, particularly when it comes to employees who are in a protected class under state and federal laws (think age, race, sex, disability, etc.). For nonprotected class discrimination claims, such as whistleblower and retaliatory discharge claims, the employer’s documentation will still prove crucial. The bottom line is that the less subjective evidence there is, the better.

Demonstrate Respect at Termination

Once you’ve dotted the "i’s" and crossed the "t’s," your last step will be to meet with your employee and formally let him or her go. Of course, you’ll want to show the same degree of professionalism and consideration that you did throughout the entire termination process.
Before the meeting, go over everything you’ve done so far to ensure that it’s clear to you why you’re now terminating the employee’s employment. Then gather up any necessary paperwork you’ll need during the meeting. You’ll probably want the employee to sign a severance agreement and other documents. You may also want some type of statement to read to the employee about the reasons for separation from the company.
Be sure to have all of your important documents in hand so you don’t have to get up during the meeting and possibly leave the employee with fresh doubts about the reason for the termination. You also want the meeting to be as brief as possible to avoid any further dissipation of morale in your company.
Meet with the employee in a quiet place away from everyone in the office. Ideally, no one should know why the employee is leaving work that day. The meeting should be between you and the employee, preferably with no witnesses. Be nice, but be firm: no matter what the employee says or does, you need to stay calm and keep your reasons for the termination front and center in order to avoid a law suit.

Undertake Post-Termination Processes

The post-termination process is important to follow through with to avoid future liability. While you may have terminated an employee for good reason, the employee may file for unemployment benefits after the termination. If you handle the termination process properly, you will have a good chance at being victorious at the hearing.
Final Pay
Generally, the employer should issue the final paycheck immediately upon termination. Failure to do so may entitle the employee to additional compensation. For an employee that resigns, the employer generally has until the next scheduled payday to issue the final compensation. There are some exceptions, however, for a disgruntled employee who chooses to take leave from work. It is best to consult your state’s Department of Labor’s website for specifics or your HR representative.
Retrieve Company Property
When an employee no longer works for you, where should they go? Make sure that someone is designated, such as a manager or HR representative, to retrieve company property. When an employee leaves office, all of his or her belongings should be out of their workspace. The company property must be obtained unless the items in question are considered a personal item – such as a family photo – or return of the property will cause potential for damage to the employer. Ideally, the employee’s personal items should have been cleared out of the workspace prior to termination. Once the termination occurs, the company property can easily be retrieved without incident. If the property has not been cleared and removed from the workplace, it should be followed through with immediately.
Communicate Departure
During the termination meeting, specifically tell the employee’s supervisor that the employee no longer works for the employer (if applicable). It is also important to send an email or make a phone call to the employee’s coworkers to inform them that the employee no longer works in the organization. In both instances , be careful to keep it brief. You do not want a lot of speculation following the termination. Simply state that the employee has left the company. Well-meaning co-workers may wish to reach out to the former employee. Without your guidance in crafting a generic yet thoughtful email, your employees could put you into a public relations spin.
Be Prepared for Backlash
Although your termination process may be clean and cut, the employee may not handle the termination well. Have a plan for the hours following the termination so that you can alert your IT or Building Maintenance departments if the sacked employee decides to take revenge on the company. Your plan may include changing door codes and computer passwords. Be diligent about reversing all security access provided to the employee when he or she was working. Also, if the employee tries to contact you after termination, you should give the individual a set response so that there is no attempt to have a conversation about the termination. The response can simply state that the employer does not want to engage in further conversations. It is important to negate any attempts from the ex-employee that could bring on a lawsuit. While some states do allow an employer to call a cease and desist on an ex-employee, if the employer has not taken the precautionary measures beforehand, the employer may be stuck waiting for the person to actually commit to the action before responding.
Restore Office Morale
After firing a bad employee, your staff members may be fearful of their own job security. Their morale could dip and the quality of work could reflect that. To decipher if this is the case, it is wise to meet with the staff and let them know that you are dedicated to making a productive work environment. Also, you should focus on all the positives that resulted from the termination. And, should there be any repercussions on the quality of work after the termination, this is the time to address it.