BEFORE
YOU
TERMINATE
Contemplate before you Terminate!
When all else fails, terminating an employee may be your only option. However, this can be a most unpleasant task, even if it is for the betterment of your business. The action is so draconian that it is referred to as ‘workplace death penalty’ or “workplace divorce” but perhaps the better characterization is ‘workplace divorce’ since the parties involved can choose to be combative or cordial. An employer should always adopt a cordial approach since the way in which an employee’s termination is handled is often a motivating factor in that person’s decision to sue for unfair dismissal. This article highlights certain considerations you should keep in mind before the decision to terminate an employee is made or carried out!
1. Can You Terminate?
This is a legal question that is generally best answered with the assistance of a lawyer. In Anguilla, the employer’s ability to terminate an employee is restricted by the Fair Labour Standards Act (“FLSA”) to instances where there is a valid reason for such termination which is (i) connected with his capacity or conduct; or (ii) based on the operational requirements of the business. Therefore, if the employer does not have one of these reasons, then the termination will be unfair, even if a fair termination procedure is adopted.
2. How do you terminate?
Although the FLSA does not provide specific dismissal procedures, an employer must utilize a fair and reasonable procedure when dismissing an employee. This is important because the employer’s actions would be judged on an objective basis; that is, whether termination was fair and reasonable in all the circumstances.
? Fair and reasonable procedure – What will constitute a fair and reasonable procedure will depend on the circumstances of the particular situation, but some general rules an employer should keep in mind, if he does not have his own disciplinary code/manual, are:-
(i) an employee has the right to be told what the problem is with their conduct or performance and that disciplinary action is a possibility;
(ii) the employee may wish to have a representative present at a disciplinary meeting. Consideration should be given to this, depending on the circumstances.
(iii) The employee must then be given a genuine opportunity to respond with their side of the story before the employer decides what to do. The employer should investigate any allegations of misconduct thoroughly and in a manner that is impartial and should not be swayed by matters that are unrelated to the problem at hand.
(iv) Unless the conduct in question justifies summary dismissal (dismissal without notice), the employee must be warned of the dangers of continued misconduct or poor performance. In appropriate cases, the employee should be given assistance to remedy the deficiencies identified.
? What is the required notice period? – Except in certain circumstances or where the contract of employment mandates, an employer is not required to give notice of termination. If the employer is required to give notice, he must give, at the very least, the period of notice stated in the employment contract or in the FLSA, whichever is longer. The notice to be given under the FLSA varies on how long the employee has worked for the business. The employer may also choose to make payment ‘in lieu of notice’ (that is the wages the employee would have earned during the notice period) if the employee is to stop working immediately or before the end of the notice period.
? When to Do it?– Once the decision to terminate has been made, it is best to proceed fairly quickly.
? How to Say it? – There is no way to inform an employee that he or she is being terminated without the risk of inflicting some emotional pain. Thus, it behoves the employer to state the reason for termination with the utmost care. Be clear and honest with the employee without being inconsiderate or hostile. An employee whose feelings are badly bruised or who feels slighted will be more likely to seek out a lawyer and explore an unlawful dismissal claim.
? What should be included in the termination letter?– It is best to terminate an employee both verbally and in writing. Your termination letter should specify:-
(i) the reason for dismissal;
(ii) the date of termination;
(iii) if the termination is with notice, whether he/she will be asked to worked during the period or be paid
in lieu of notice;
(iv) whether holiday pay is due and if so
how it is calculated;
(v) any post-termination restrictions; and
(vi) arrangements for return of property and information belonging to the
employer;
Conclusion
Terminating someone is never easy, no matter what the reason. It is also important that you get it ‘right’ because otherwise it may become a very costly exercise. You should ensure that everything you do is in accordance with the laws of Anguilla and your internal policies. To protect yourself and your business it is imperative that you follow proper protocol.
THE LAW & YOU is a public legal education column written fortnightly by KEITHLEY LAKE & ASSOCIATES, Attorneys-at-Law, The Law Building in the Valley (tel:264-497-2069). The views expressed herein are not, and are not intended to be and should not be taken as, a substitute for legal advice. Please send your comments and questions to thelawandyou@anguilla-attorney.com.
(Published without editing by The Anguillian newspaper.)
