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The Best Legal Advice I Ever Received

Before I get into the guts of this post, keep in mind that this is a human resources and leadership focused blog and is not mean to convey legal advice of any kind. Think of it as one person sharing their experience in the jungle of human resources! With that being said, as HR Professionals (and depending on the industry in which we work) we often have cause to interact with employment law lawyers…sometimes on a regular basis. I remember back in my heyday of working in the call centre industry, I think I had our outside counsel on speed dial!

write-a-chequeHaving said that, I have had an opportunity to deal with a myriad of (potential) legal cases during my career: some of which were driven by the (ex) employee and some that were probably driven by the employer side. Regardless, I have seen it all from the dismissal side: attendance/absenteeism, tardiness, harassment, performance, conduct of all types, etc. Here is the challenge on the employer side, unless there is something so blatant and so egregious, it isn’t a simple matter of terminating an employee for cause. I have had this discussion with managers a million times during my career. I always end up asking the same questions:

Did you have a conversation with the employee to address the issue?

Why not?

When you did, did you document it?

Did you follow up with them the next time “it” happened?

Why not?

Did you address it the “next” time?

Did you document it?

Did they know their employment was in jeopardy?

The list goes on, but this is pretty typical. You see, most managers just want the employee problem to go away. Whatever the “problem” is, they just want it gone. Chronically absent or late employee? Make them go away! Underperforming employee? Make them go away! Difficult to get along with and/or co-workers can’t stand them? Make them go away!

Managers don’t want to deal with this stuff, despite how much you might coach and prepare them. They have a ton of pressure on them to deliver product, goals, service, etc. with understaffed departments, so the last thing they want to deal with is the stuff above. Most HR Pros try to coach the manager through the situation. They coach them on how to have the proper conversations, how to document, how to provide the right warnings, etc. Here is the thing; 99 times out of 100 the outcome is inevitable! The manager will simply comply for a while so that they can finally get you to support them in a termination decision!

Having worked through many difficult, complex employee relations situations, I always default back to the stance of whether or not the manager truly wants to ‘save’ the employee and/or if the employee wants to be saved. All of which brings me to the best legal advice I ever received from outside counsel years ago. Their advice was this, “If you think (HR/the manager), after all this documentation and counselling, the end result is ultimately going to be termination, then just write them (the employee) a cheque…it is far easier, less complex and less time consuming.”

Think about that, how much easier and less complex would our lives be if we followed that approach! No more charades or games. No more managers pretending to try and want to ‘save’ an employee and no more employees pretending that they want to be ‘saved.’ We could all just cut to the chase and solve things with some dollars!

Yes, I am being a bit facetious here; however, the point is this – let’s stop wasting time and effort. Many managers, when they hear that they could make a problem go away for $10 – $30K are often all ears. Then, reality sets in when they realize that comes off their bottom and/or there is no budget or special fund for that sort of thing! Often, at this point, the conversation turns back to how effectively manager the employee (which is where things probably broke down in the first place!)

Here is the thing, when you think about it, when you have a seriously underperforming employee or a conduct issue, $10K to make the problem go away isn’t much, especially when you are a $50M or $100M+ company! So, the next time you are dealing with one of these types of issues ask yourself (and the manager), are you TRULY COMMITTED to improving this situation? If so, then I am a big proponent in the coaching/performance management approach. If the answer is NO…then write a cheque.

Drops mic…

As always, I welcome your comments and feedback.

Photo courtesy of CarbonNYC/Flickr.com

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