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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


Sometimes, you just have to say “Goodbye”

One of the darker, but necessary parts, of our jobs as HR Pros is when we have to provide council to our operations partners on the potential termination of an employee. I am not talking about layoffs here (which are the most unpleasant of all) or gross misconduct (i.e. lying, cheating, stealing, and violence) but more the terminations we are involved with that are in fact conduct related, but are an accumulation of things. I am referring to the situations where you have employees that are habitually late, have pattern absenteeism, unauthorized absences from work, can’t meet work deadlines or are a general performance issue.

ByeIt has been my experience, more often than not, that when HR becomes involved with, or aware of these scenarios, the situation is often typically past its breaking point. The interesting thing is that contrary to what many (HR) people believe, that managers are quick to want to fire, my experience is that managers are often unwilling to make that final decision to terminate in cases as I described above. Often the manager has spent a lot of time and effort in counselling the employee, coaching and ultimately warning the employee that their behaviour/results need to improve. They have put in yeoman’s work to try and improve the situation but at the end of the day, it is the employee who is unwilling or unable to change. More often than not, the manager has gone the extra mile.

Often the manager is reluctant to go to the final step of termination because the employee is “nice,” or gets along well with everyone else, or “tries hard when they actually are at work, or perhaps the manager even knows of some personal circumstances that make them unwilling to terminate. Let’s be clear, I am not referring to something that is a short term issue here, these are cases where there has been sustained issues for 6 months or more with no improvement shown. It is in those cases that you aren’t doing yourself, your team, the organization or the underperforming employee any favours by keeping them around.   Sometimes, you just have to say “goodbye.”

Here is the thing; there is also a hidden cost to keeping someone like this (chronic tardiness, absenteeism, underperforming, etc.) around. You do irreparable damage to your team, as they are the ones picking up the slack AND you also damage your reputation/credibility as a manager. You can’t be taken seriously if you are willing to accept poor performance for 6 months, a year or more!

So my advice in these cases is simple. It starts with the hand on the heart test. That is, (assuming your documentation is in order) if you can put your hand on your heart, look in the mirror and state, “I have absolutely done everything possible to help this employee improve and set them up for success,” than you need to say goodbye to them. No one is saying it is easy and no one is ever going to say it is no big deal, but you just have to do it. Do it for your team and do it for the employee in question. More often than not, they just need the nudge out the door (it will probably come as a relief to them) to start a new chapter in their lives. Do it with respect and allow the person to maintain their dignity when leaving and then everyone can start fresh, because sometime, you just have to say “Goodbye.”

Image courtesy of Stuart Miles/FreeDigitalPhotos.net

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