How Not To Fire Someone

Want to ensure you’re on the invite list for all of your law firm’s client functions? One way is to send them lots of work — and that means ensuring all your ex-employees leave disgruntled and eager to take you to arbitration or court after they’ve been unfairly dismissed. Here’s Today’s Trucking’s five-part guide on How Not to Fire Someone.

— Don’t bother with a company policy manual — Just wing it. That way, all your hires are completely in the dark on what’s expected of them on the job. If they screw up on the job and get the sack, they can rely on the “but, I didn’t know” defence at arbitration. “Companies that have employee manuals can rely on manuals to say to the employee ‘look it, we told you, you were aware of it, you ignored it and you leave us with no alternative but to dismiss you because of it.’

Diplomacy goes a long way in
employee-employer relationships

It’s that kind of evidence that’s going to be supportable by an adjudicator, along with proper documentation of wrongdoing,” says Dave Leroux, client education consultant, Human Resources and Skills Development Canada.

— Don’t document anything. If your employee is routinely late for work, forget about documenting violations. For minor infractions such as chronic lateness, the folks with the Canada Labour Code like to see employers using progressive discipline measures to try to take care of the problem before dismissing an employee. The golden steps to progressive discipline work like this: verbal warning, written warning, suspension, dismissal.

However, if you expect to rely on these steps to justify your case, you have to document everything fully. Don’t bother if you want to keep going to your law firm’s annual golf tourney.

— Don’t treat the ex-employee fairly. Just kick them to the curb without giving them notice or payment in lieu of it. Both the Canada Labour Code and Employee Standards Act set out minimum statutory notice periods that an employer must either give the soon-to-be ex-employee or pay a comparable amount in wages, according to Carole McAfee, an associate at Toronto’s WeirFoulds LLP.

And since courts and arbitrators also rely on common law in finding reasonable notice periods, factoring in such things as an employee’s age, experience, position held, and length of tenure, it’s probably best to disregard that as well. If you err on the side of generosity in giving notice terms, you’re more likely to stay out of arbitration hearings and, therefore, law-firm client barbecues.

— Be sloppy with cause. If you think you caught your employee with their hands in the till, fire the person immediately and do your investigation afterwards. Make sure the investigation is full of holes, with lots of wiggle room for an opposing counsel to pick apart the facts of your case. As McAfee notes, cause is very hard to prove and she recommends that any employer considering terminating an employee relying on cause to get some advice.If you heed this advice, you’ll still be providing some work to your law firm, but you could give them so much more if you ignore it and let the case wend its way through the courts or arbitration.

— Ignore the terms set out in your owner-operator contracts. Your owner-operator contracts should set out a notice period for terminating the relationship; say 30 days’ written notice. If you stick to that, there’s little recourse for the owner-operator but to find themselves another carrier since they freely entered into the contract.

If you don’t include the notice period, pencil in some court dates on the calendar. Another good way of ensuring litigation is to use confusing, poorly worded contracts that leave jurists scratching their heads as to what it means. “Then the court can set aside the contract and infer what a reasonable term of notice would be,” says McAfee.

Just remember. You pay lawyer bills to help you make money; not to spend it on ex-employees you’d thought you’d seen the last of.