Best firing practices: Preparation is key

  • September 26, 2018
  • Ann Macaulay

“Hire slowly but fire quickly,” says a Toronto employment lawyer.

Terminating the employment of associate lawyers or support staff can be extremely awkward and stressful. But “letting people linger and fester within the firm is not a good thing,” advises Lisa Stam of SpringLaw in Toronto. And there are ways to make things go relatively smoothly before, during and after a termination meeting.

When you do decide to cut the cord, make sure you do it as respectfully as possible, to preserve the employee’s dignity, says Tara Matheson of Duncan Craig in Edmonton. Be professional, brief and to the point.

Any termination process, of course, starts with the question of cause. Violence, harassment, theft or fraud can all be reasons to terminate immediately. If your firm has a progressive discipline policy in place, assess whether the bar for cause has been met and the steps in the policy have been followed.

If there’s no cause, determine whether provincial statutory minimum requirements must be met. Does the employee have a contract? “Sometimes, employers forget to look back at that contract that was signed 10 years ago that’s still in force,” says Matheson.

Along with cause, it’s also important to think through the ramifications of that person no longer working at the firm, including how to inform clients and how the work will get done tomorrow.

When it comes to the actual termination meeting, prepare the paperwork in advance, including a letter laying out whether the termination is with or without cause, when the final pay will be deposited, when the record of employment will be issued, a summary of benefit options and coverage, and conversion options for life insurance. An offer for additional compensation should specify the amount. “Go into the meeting armed with all of that information because the employee is entitled to leave feeling like they know what might happen next,” says Matheson, who also notes that a poorly conducted termination meeting can result in increased damages in a litigation process.

Hold the meeting in a private location, preferably at the end of the day so they don’t have to walk through the workplace in front of their colleagues. If the person is visibly upset after the meeting, let them collect their personal belongings the next morning. Avoid meeting on a Friday or right before a holiday or a long weekend to allow the person access to any support they need, including lawyers, counsellors or medical providers.

Conduct a face-to-face meeting limited to two representatives from the firm’s management or HR department since more than two people can be intimidating. If the meeting goes badly, the two can independently verify what happened. After the meeting, each person should document what happened, sign it, date it and put it in a file. “A lot of these meetings go perfectly fine,” says Matheson. “But if they go awry you want to have some documentation as to the perspective of the people who conducted that meeting.”

Have a response ready for why the employee is being let go. In a for-cause termination, prepare a one- or two-sentence statement and stick to the script. An employee may argue about whether things did or didn’t happen, and that meeting is not the time and place since the decision has already been made. In a without-cause termination, don’t misrepresent the situation and say the company is downsizing if that’s not true. It’s perfectly acceptable to say that the employee isn’t a good fit.

Decide in advance whether the firm is willing to provide a reference. “You can do a neutral letter of reference,” says Matheson, simply stating that the employee worked from this date to that in this position, earning this amount. “Reference letters can have liability attached to them if you misrepresent the circumstances of termination. So if you’re terminating somebody because you’re unhappy with their job performance, then we certainly wouldn’t advise turning around and giving them a positive reference to another employer.”

Before firing a lawyer, think about how it will be perceived outside the firm. Try to preserve relationships and part on good terms. The legal community can be small and it won’t help the firm’s reputation if it acquires a reputation of high turnover and hostile behaviour towards employees.

“You don’t want clients thinking that this is haphazard or sloppy because they’re going to visit that perception on all your work,” says Sean Bawden of Kelly Santini in Ottawa. “Even if the person is awful, you don’t need the world thinking that you knew it and condoned it.”

If a lawyer is being fired, that relationship won’t end immediately, says Bawden. What will happen with client relationships and files? “Who will get the work done and how will clients find out the lawyer is leaving?”

Ask for the return of firm phones, computers, key cards and credit cards. People often store personal contact information and photos on their phones and computers, so allow them to access their phone and computer.

There’s usually no need to escort someone off the property, says Bawden, “unless you’re absolutely certain that they are going to steal or break something.” He has heard stories of employers walking the person outside, all the way to their car and even to the edge of the parking lot, which “makes a bad situation worse. That’s where you can see aggravated punitive damages.”

The more that’s done to facilitate the transition, the better for both sides, says Springlaw’s Stam. “It’s in everyone’s best interest if you can help the person mitigate and move to a new role—for emotional reasons, for monetary reasons, for legal risk reasons.”

Be “empathetic that this person is traumatized by the termination,” says Stam. “Don’t provoke additional damages by being harsh about it.” Create a mutual exit message with the associate, including whether an email should be sent by the firm to clients and what it should say.

Don’t pay out the absolute minimum severance package, Stam cautions. Offer a somewhat better package that’s “more likely to just settle and be done and that will be way more cost effective for the firm.” It doesn’t cost much to continue benefits, so keep them running.

If possible, give working notice to allow the professional to find new work, as long as there are no confidentiality issues. “Tell them they don’t need to come to the office anymore. Then you can freeze them out of all additional data but they remain on the website and it lets them still look for work,” says Stam.

But, she adds, “At some point, just make the decision to move on. People will land. It’s going to be OK.”

Ann Macaulay is a Toronto writer and editor.