So you’ve had enough of Bob.  He’s screwed up so many times that he just has to go.  We understand – so many businesses struggle with firing their Bob.  

And for good reason.  Terminating an employee is a complex process.  While in some countries (or states), you can simply fire someone with no steps and all protections are in place for the employer, that’s not the case in Canada.

That means no throwing up your hands, firing Bob, and throwing him out the door.  There’s a process you need to go through.  

Rascal Note:  For those of you who haven’t read about Bob in our previous posts, Bob is the recipient of Canada’s Worst Employee (reality TV show pending).  He’s completely toxic, seemingly intentionally does everything wrong and is your worst nightmare as an employee.  We’ve all met our share of Bobs.  

The Three Types of Termination

The first step is to understand the types of termination.  Each of these have different legal and process requirements:

• Without Cause
• For Cause
• Wrongful Dismissal

Termination Without Cause

This means that you, the employer, have a legal right to simply ask the employee to leave, with no given reason for termination. However, you must provide the employee written notice or pay in lieu of notice within provincial guidelines.

 

Termination For Cause

Just cause – termination without notice or pay in lieu of notice; the onus of proof is on the employer to show on a balance of probabilities that an employee breached an employment contract in a fundamental way or has committed misconduct that has irreparably damaged the employment relationship.

Serious violations such as fraud, theft, assault or harassment, conflict of interest or wilful misconduct may require only one provable incident to justify dismissal without written notice or compensation for length of service.

However, unsatisfactory performance, absenteeism or tardiness typically do not constitute Just Cause. If you are unclear as to whether it is Just Cause, contact your employment lawyer for clarification.

Wrongful Dismissal

Straight to the point – you don’t want to do this ever.  It usually results in a lawsuit against you.  

If you dismiss an employee without providing sufficient notice or payment in lieu of notice (severance pay), and there was no just cause for termination.

How To Terminate Without Cause

So you’re DONE and ready to start the process of termination without cause.  This is not a reality TV moment where you just yell “You’re fired!”, no matter how much we’d love to do that. 

Instead, follow these steps to minimize your legal risk:

Let People Know Where They Stand

First, performance-related terminations should NEVER be a surprise. People deserve the respect of you providing feedback and giving them a chance to improve.  

We know, these conversations can be hard.  We coach leaders through them on an all-to-regular basis. 

There’s a simple 5 step process to having these conversations:

1. Document your goal(s).  It’s vital you’re clear on what you want to accomplish before you go into the meeting
   Invite them to a discussion.  It’s an easy first step for you, and sets the stage for a conversation
2. State the facts.  Facts are hard to dispute
3. Explain the outcomes that are needed
4. Be prepared to coach them (not in this conversation, but over the next few weeks) to help nurture the right behaviors. We recommend setting up regular 1:1s to build consistency

We believe that having a frank conversation is a vital first step.  If it’s appropriate, do this before you develop the improvement plan.  Often employees with poor performance or behaviors will improve by being clearly informed of the issues and coached by their leader.  

Develop a Detailed Plan and Timeline

If a conversation and some ongoing coaching isn’t working. It’s time for the next step.  

We’ve all heard the term “Performance Improvement Plan”.  This is the formal document that lays out exactly what improvements are needed at what points.  

Set realistic goals with the employee that are measurable and make sure they are documented with both parties in agreement

Set clear expectations of what will happen if they are not met within the timeline (ie Termination)

Give them the opportunity to succeed. Be approachable and supportive.

The goal here is to be very specific, with clear indicators of success and timelines.  These will create the clarity you need in the legal termination process.

Prepare Legal Termination Documents

Now that you’ve given your Bob every opportunity to improve his performance and succeed, it’s time to get the legal elements of a termination in order.  

Prepare your legal termination documents, including:

• Termination Letter stating pay in lieu of notice amounts
• Release Documents if applicable

If applicable, calculate pay in lieu of notice based on employment contract. Make sure you have employment contracts or you will be at “Common Law” which can be very expensive and risky!. See blog The 4 Critical Elements of an Employment Agreement for Small Business for more information.  

If additional severance in exchange for a sign release is warranted, give the employee a deadline of a week to sign off on accepting a severance package. Never ask them to sign it during the termination, as they are under duress and it will not hold up in a court of law.

Always Treat People With Kindness

Nothing shows who you are like how you respond in the most challenging times.  While you might internally be happy (dancing with glee) to be terminating your Bob, treating them with respect and kindness is vital to making this a positive (well, less negative) experience.  

When doing the actual termination: 

• Hold a face to face meeting when terminating. Never do it over the phone or by email
• Put the onus on them… “we gave you many opportunities to succeed, we are not sure why you chose this path
• Have a neutral third party in the meeting as a witness
• Keep it brief. Less than five minutes is ideal
• Wish them the best of success. There is no need to walk them to the door unless there is risk to other employees or customers

From business coach Mike Knapp: “I believe everyone has the potential to be awesome in the right environment.  Yours may not be the right environment for them.  Reframe terminations.  You’re helping them move on to somewhere they can be awesome and happy.”  

Wise advice, but clearly he’s not talking about Bob.  

How to Terminate With Cause

When an employee does something to constitute Just Cause for termination, it is important to do three things:

• Prove the termination for Just Cause is valid. The onus is on the employer to prove this.
• Terminate the employee right away
• Provide the employee with a termination letter that specifies Just Cause and that no pay of lieu of notice is warranted.

What You Need in Place to Protect Yourself

Before you ever get to the point of terminating an employee, you need to have the right elements in place to protect your business.  

Employment Agreements

Every employee (or subcontractor) needs to have an employee agreement in place.  

Creating appropriate employment agreements is very important, as there’s differences for each province in Canada.  RascaHR includes the ability to build employment agreements based on your province, tailored to the specific needs of the role.  

Employee Policy Manual

We’ve talked about the need for a policy manual before.  Policy manuals provide the expectations and requirements for working at your organization.  They include policies around many of the things that employees could be fired over, including privacy, social media, workplace harassment and the working environment.  

Our policy manual builder includes all the policies you need to meet regulatory requirements and more.  

Ready to get your HR requirements in place?  Let’s talk.