I work for many large companies in the country and many small and medium companies — and with a firm that works against many others – I see human resource managers make the same mistake over and over again. In this week’s and next Saturday’s column, I will look at some of the biggest recurring errors, from over-documentation to inconsistent application of company policy. Many of these may seem overly contradictory, but the results can be significant.
A few years ago, Murray Axmith, the late, great transfer consultant, and I traveled from Halifax to Vancouver twice a year to teach a course called “Rightful Dismissal in the 90’s.” I would start my part by saying, “What are the three most important things for HR managers: 1) documents; 2) documents; And 3) documents. “
I was confused! I have seen and heard many employers lose their cases over the years due to excessive documentation.
HR managers must remember that, in any case, a copy of all the documents in issue must be submitted to the other party in accordance with their law. So if an HR manager writes down the good, the bad, and the ugly with a study, it’s like not recording things that involve the theory of the other party to the case or can be destructive to themselves.
When recording something that may be related to a future case, keep one thing in mind: the other party will see it. In other words, what I learned from those early seminars is that the more documentation your case makes, the more often it is.
The standard form uses caution
When employers want to dismiss an employee for any reason or he commits a breach at a later date, they must state that.
Don’t use common sense word choice: “More such incidents will lead to further discipline, including dismissal.”
Legally (and in plain English) what this expression means is that the next time an employee does this, they may be fired. Or they may not be. It telegraphs to a judge or arbitrator that even the employer believes that the violation is not serious enough that its recurrence inevitably justifies the discharge.
Court cases have found that such language means that the next violation must be at the very top of the threshold for serious misconduct in order to issue a dismissal warrant. But that is not the case most of the time when HR managers use that language. What they mean is that “similar misconduct will result in your dismissal.”
Just say so in your letter.
Accepting their ‘favorite’ word
When an employee makes a serious complaint but is denied by someone more trustworthy than their supervisor or HR, many HR representatives either accept the superior’s authority for what happened or have already entered into a biased investigation. While this may be, to some extent, psychologically unavoidable, you should never predict the outcome of an investigation because of your personal belief in the relative credibility of a party. This will not only lead to terrible internal morale with allegations of bias, but it can also lead to potential legal action by the affected employee for negligence, constructive dismissal or worse. Go to each investigation or truth-seeking session with an open mind and investigate each, even moderately serious allegation.
Refusing to release due to new allegations
Some employees, knowing they are about to be fired, will file a complaint of misconduct (such as receiving a doctor’s note) in the hope of bulletproofing themselves from a discharge because the company fears retaliation.
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Don’t fall for that. If an employee’s misconduct warns them of dismissal, proceed to do so. If they are accused of misconduct by a manager which, even if true, will not affect the dismissal, you can still conduct an investigation. If the employee has made a good point, then you need to investigate the accused and even if there is a warrant then discipline may be required. But it does not allow the employee to hook off for matters which, if the allegations are true, guarantee dismissal.
Allows poor performance or misconduct to persist
If an employer has a reason, it must work on it. This creates a remorse for not doing so which makes it very difficult to dismiss the employee for subsequent similar misconduct. At the very least, if they do not want to dismiss the employee at that time, they should be warned that the employee will be fired if such misconduct is repeated.
Failed to document your practice
If an employee claims that your practices are inconsistent or that they have been intentionally deprived of certain benefits, it is helpful to have written records to show that your practices and policies establish previous consistent practices.
Policy inconsistencies apply
Nothing kills the right to apply policies that the company itself did not follow or applied inconsistently.
The second episode of this column will appear in next Saturday’s financial post.
Got a question about employment law? Write to Howard at [email protected]
Howard Levitt Levitt is Sheikh’s senior partner, employment and labor lawyer with offices in Toronto and Hamilton. He practiced employment law in eight provinces. He is the author of six books, including the Law of Dismissal in Canada.