“How do we fire someone and not have it come back to bite us?”
While businesses may couch this question in more delicate terms, that’s essentially what they’re asking: how can we get rid of this person? For labour and employment lawyers, this is a standard question, and it comes with some standard responses. As they say, when you’ve got a hammer in your hand, every problem is a nail. Could it benefit both you and your clients if you were able to throw a wrench into the mix?
It can be a lengthy process when terminating an employee, even in non-unionized settings. As Counsel you will tell your client about progressive discipline, the need for warnings, opportunities for improved performance/behaviour, repeat those warnings just to be safe, and of course the need for documentation at every stage. While there are employees that need to be terminated, many others have performance problems that are related directly to the conflict competency, or, rather, incompetency of the employee, perhaps a particular manager or of the company itself.
So the question is this: is the situation so bad that your client just wants to get rid of this person or, is this a situation where if only some bothersome behavior must change and the employer could keep that person and benefit from the skills and knowledge that they were hired for in the first place? In my experience the latter is frequently the case. The fact that this person may not be getting along with co-workers doesn’t mean those skills have flown out the window.
One cannot have intolerable conflict in the workplace, but firing someone is incredibly expensive. The employer will have to cough up pay in lieu of notice or allege “cause”, go through the hiring process, and train a new employee. Additionally, there will be tremendous stress placed on the remaining employees because someone has to pick up the slack in the weeks or months before that new hire is trained and running at full speed. This leads to resentful employees – because that extra work doesn’t come with extra pay – and the ripple effects will spread far beyond that one terminated employee.
So what’s the optimal situation?
If you are consulted in these early stages about how to “properly” fire someone, is it possible to pose an alternative to the standard legal advice or at least some additional options? Depending on the problem, your clients’ best move could be to think of alternative methods of resolving the conflict. In other words, if they really do want to give the employee in question a fair shake, why not consider conflict resolution training?
If interpersonal conflict or relationship issues are at the root of the problem, part of the progressive discipline process could be a few sessions with a conflict coach. Why not give the employee the best chance to actually resolve the problem and keep his job?
You are likely thinking one of two things:
- This sounds like it could be great for some of my clients; it is a solution I’d like to offer.
- This guy is nuts. No way am I going to say, “You don’t need me; you need a conflict coach. Go pay him instead.”
Again, you might have couched it in different language, but I would guess #2 is a fairly standard response even if not a fully formed thought. When lawyers are getting asked for their advice it is not a threat to their practice to mention another option in addition to progressive discipline; you’re still writing the plan and working on the case, but you’re also saying: “Here’s something else you can try,” or, “You might want to consider doing this.” You are adding another element to your advice that will add value to your clients. Even if the Conflict Coaching does not work, it is great evidence that you gave the employee a fair shake and will greatly diminish the chances of losing a wrongful dismissal case. Sometimes Conflict Coaching results in the employee realizing that his or her fit with the organization is not good and they decide to resign.
“But what if Conflict Coaching works?”
If I hadn’t mentioned it, I’d be clocking hours to terminate this employee.” True. That’s the short-term view. But effective lawyers want to solve the problems from the client’s perspective. It’s not, “How can I get the most money from this person?” The benefit of this client-perspective approach is twofold: one, you’re actually helping your client, which is your job. And two, they know you’re helping them, even though it would profit you more to go another route. That turns a client into a repeat client. You will be the “go to” person when the @!*&%$#! hits the fan!