From time to time in my many years in business, it was necessary, if extremely unpleasant, to discharge an employee.
From time to time in my many years in business, it was necessary, if extremely unpleasant, to discharge an employee. I found it difficult the first time and equally hard the last. It is a safe assumption that if you must discharge an associate chiropractor, a fellow professional who has made a large investment in education and training, it would be still more difficult. When this person accepted a position within your practice, both parties were optimistic. However, in some practices, not everything works out as intended and there must be a parting of the ways. Some will go amicably; some will be fuming; still others will threaten legal action for wrongful dismissal. No matter which ending you find yourself in, the process always engenders intense emotions for all parties – you, the associate and those who remain.
Because of the potential for litigation, this situation is made still more onerous. If not handled with discretion, it could generate a lawsuit that could become costly to defend. This could also apply to “constructive dismissal,” which is defined by creating such an oppressive environment that the associate was forced to leave. Oversights made before or during the exit interview, and after the discharge, can significantly affect both employer and employee.
Terminating for just cause
“For just cause” means that the employer has a valid reason to fire this person. The reasons are numerous and would include such infractions as overstatement of qualifications; unsatisfactory performance; incompetency; violation of the Standards of Practice of Canadian Association of Chiropractors and/or your provincial jurisdiction; inappropriate behaviour; sexual misconduct; using drugs or drinking on the job; and being belligerent to patients.
Too often, it is easy to assume that as the associate is a trained professional, if ignored for a sufficient period of time, the problem will just disappear. This is wishful thinking. Usually it doesn’t and, in most cases, it becomes exacerbated with time.
Wrongful Dismissal
Today’s labour laws appear to be structured in favour of the employee. One has only to read the multitude of advertisements by law firms to see that none are for the benefit of the employers. However, this does not limit your right to discharge an employee for good reason or for no reason at all, including general dissatisfaction with this person. You only need to ensure that the discharge is not prejudicial, or could be classified as “Wrongful Dismissal.” This would include discrimination on the basis of race, sex, religion, age, nationality or sexual orientation. You cannot fire an associate who filed a discrimination claim, refused to commit an illegal act, or has a statutory right. However, the law is not unfair. It provides the employer the opportunity to prove that the dismissal was not wrongful or prejudicial.
Still, be careful!
Methodically document the reasons for, and the steps you have taken in, bringing about this action.
Once you have decided to do it, a wise idea is to consult with your lawyer and lay out the plan. You are dealing with well-educated professionals. You may have to defend your actions before a judge. You might not be guilty of wrongful dismissal, but the cost of proving your innocence could be exorbitant.
If you get sued, never take with you to court any notes that are not completely aligned with your primary purpose and could be picked apart to be construed as having even the slightest hint of prejudice. Better yet, don’t take any paper of any kind – leave this up to your lawyer. Some years ago, when defending a major project foreclosure, opposing counsel snatched my sheath of notes and used some of the information therein against me. Destroy any such data that may be in your files.
Before Terminating
Discharging an employee should never be a “shoot from the hip” reaction to a specific situation. It should be a well-thought-out, yet timely, process. But, don’t delay it unnecessarily. When operating a real estate and business appraisal practice, an employee of mine – this person was hired to be an appraiser – struggled with appraisals and I struggled with him for about six months. Had I discharged this chap much earlier, I would have done both of us a favour.
There was no way to correct his poor performance! He had the desire to be an appraiser but lacked the ability. Good at book learning but poor in practice!
When in a similar situation, you must satisfy yourself that you have taken all steps to ensure that terminating this associate is the correct action and that doing so is best for all.
The Steps
- Unless you have prior knowledge, begin with a detailed investigation into cause and probable action.
- Ensure that the problem or allegations are real and have been or can be substantiated.
- Have a sit-down with the associate and in an open, non-prejudicial manner discuss the problem or
- allegations.
- Give the associate every opportunity to respond.
- Try to find an alternative solution to dismissal.
- Most importantly, when you are certain that the problem(s) cannot be resolved do not sweep it under the rug. Act with discretion and candor.
Doing the deed
- Having concluded that there is no alternative, take a day or three to plan the exit interview so that it creates the minimum of anguish for both you and the associate.
- Be certain to provide a detailed explanation of why you are taking this action. Be clear about the reasons.
- Document those reasons.
- Whether to provide the employee a termination letter setting out your reasons is argumentative – it’s your call!
- Avoid making personal, degrading or vague statements or saying anything that might suggest the situation is reversible.
- Consider the possibility of an irrational, negative or combative reaction and perhaps an appeal.
- Having reached this point, do it now, not tomorrow or next week. Now! Never allow an employee a few days or weeks to get his/her things in
- order. This only permits this person to do nothing to further your professional practice, but to perhaps
- badmouth you.
- Resolve the issues about confidentiality, patients’ files, ongoing patient retention and he/she becoming a competitor.
After the termination
Some remaining associates may think you have acted too harshly and prematurely. Others will wonder what took you so long. Saying “it’s not your concern,” or something of this sort, may not cut it. You must gauge yourself as to how much explanation is required and you are prepared to give. There is no definite rule regarding how to deal with these situations. Play it by ear and hope for the best.
So far as I can establish, there are no provincial or federal laws that govern what you can or cannot say to a prospective employer about the now-departed soul. Although not legally required, you may wish to provide a valid reason for the termination. Because of concern about being liable for defamation of character – or the reverse where you give a non-factual glowing recommendation – it is probably best to provide only the date of the termination.
The bottom line
Discharging an associate, particularly one who has been with you for some time, will always be stressful for both you and him/her. Because of the possibility of the situation getting out of hand, be certain to go about it carefully, methodically and with forethought. Know and understand the protection given to employees by the laws of your province. You could be sued for a tort action, wrongful dismissal and prejudice including punitive damage for pain, suffering and anything else that comes to some high-priced lawyer’s mind. As you are dealing with an educated professional, it is wise to consult your own lawyer and let this person draft the dismissal letter should you choose to use one.
You can legally discharge an unsatisfactory employee but doing it hurriedly can too easily backfire.
Lloyd Manning is a semi-retired business, commercial real estate appraiser and financial analyst. His newest book – Winning With Commercial Real Estate – The Ins and Outs of Making Money In Commercial Properties is available online from Indigo-Chapters. He can be reached at lloydmann@shaw.ca.
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