To help smooth the termination process here are our Human Resource Consulting Division’s top 5 tips:
1. Make sure it is lawful
First and foremost, do you have a valid reason to terminate the employee’s employment? Where the reason is performance related, do you have evidence that the employee had been warned about their unsatisfactory performance and given an opportunity to improve?
Even if you believe you can comfortably answer yes to the above questions, you still need to ensure that you provide the employee with an opportunity to respond to your reason for the termination of their employment. This is a critical process step to ensure that the termination is held to be lawful. If you deny the employee natural justice by not allowing them an opportunity to respond, even where you consider that there is nothing that they could possibly say that would change your mind (and it is later found that what they had to say doesn’t diminish your valid reason), it could be held to be an unlawful termination.
It is best practice, but also a legal requirement where the employee has a right to unfair dismissal, to not unreasonably refuse an employee’s request to have a support person present during any discussions relating to the termination of their employment. That is not to say that the employee must have a support person, but rather if they ask for one you should allow them to have one, even if this delays the meeting due to the availability of the support person, provided the delay is not unreasonable.
2. Documentation – get it in writing and keeping records
You are required to notify the person of the reason their employment is being terminated. This is generally undertaken in the termination letter which is provided to the employee following notification of their employment being terminated. Please note that whilst you may have prepared a draft letter of termination it should not be issued prior to providing the employee an opportunity to respond, as the final decision must not be made prior to genuinely considering the employee’s response.
It is always a good idea to keep records relating to the termination, including, for example, any previous warnings, the employee’s acknowledgement of understanding on any relevant policies, records of meetings held with the employee from initial discussions regarding the matter through to the termination meeting, termination letter, and other documentary evidence (e.g. emails). Further, it is helpful for any witnesses to discussions to sign the notes of the meeting acknowledging that they are a true and accurate reflection of the discussion to which they were a party. These documents may become useful in the event of any legal action by the employee relating to the termination of their employment.
3. Immediate exit vs working out the notice period
More often than not we recommend to clients that where the termination is at the initiative of the Employer that it minimises risk to reputational damage and/or your systems and data if you pay the employee in lieu of their notice rather than have them work out their notice period. Let’s face it, how motivated is the employee going to be anyway to be productive during their period of notice. However, if the employee is upset and angry, which is highly likely, they may take actions during their notice period which damage your organisation (e.g. delete work, bad mouth the organisation to customers and colleagues) and you may not realise until after they have left.
4. Collect company property
Have you considered what company property the employee has, both physical and electronic, and how you will go about obtaining this and ensuring there is no damage done? Generally most people have thought about the physical items, such as security passes, keys, mobile phone, laptop, car, etc. However, increasingly important is what the employee has access to such as your customer details or company information through their login to your computer system which is often able to be done remotely. To remove any risk of your system being accessed and inappropriate actions taking place, we would recommend suspending the employee’s access during the discussion regarding their dismissal.
There may also be personal belongings of the employee which you need to arrange to return to them.
An exit checklist setting out the various actions that need to take place, when and who is responsible for them can be very useful.
5. Communication is key
As is usually the case in workplace issues, communication is key. This includes with the employee whose employment you terminate, but also with the employees involved in effecting the termination and the rest of the organisation and relevant external stakeholders:
We support our clients by providing comprehensive HR consulting services. If you would like more information regarding termination please contact us on 07 3218 3955.
