Before terminating an employee for unsatisfactory performance (especially if cause for termination is alleged), an employer must take proper steps to minimize the risk of liability for wrongful termination.
Generally, these steps, which sometimes are called ‘progressive discipline’, include:
- the employee must be aware of the employer's expectations;
- the employee's performance must be significantly unsatisfactory compared to that of the other employees;
- the employee must have been warned that his or her performance is unsatisfactory;
- the employee must have received the assistance and support needed to remedy the situation;
- the employee must have been warned of the consequences that failing to improve would have on the employment relation;
- the employer's decision must not have been made in bad faith.
In addition, employers must now be rigorous in their employee performance evaluation process. This includes :
- properly documenting all training and support given to the employer before termination
- conducting proper, documented performance evaluations
- having a good performance profile of the employee to conduct a fulsome evaluation of performance
- avoiding termination based on unverified facts, impressions or opinions
- conducting serious and rigorous evaluation (and documenting it) before terminating
To minimize exposure to liability for wrongful termination, employers must establish a specific and supervised procedure that includes documentation and a performance profile on which an objective evaluation may be based, prior to termination.
Ultimately an evaluation should be grounded on verified or verifiable facts, not only on perceptions or opinions that have not been validated.
This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.
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