You have decided to dismiss an employee. This decision is never easy or pleasant.
Despite the fact that more than a decade has passed since the legal precedent requiring private-sector employers to hold a hearing for any employee before dismissing him or her, regardless of the reason for the dismissal, we are still encountering numerous instances of employers making the same mistakes in relation to the dismissal and hearing proceeding. Often, this leads to employees filing suits on the grounds of unlawful dismissal.
Here are five rules of thumb for conducting a hearing proceeding. These are designed to help you through the process, as well as to minimize the risks of lawsuits and employee demands for monetary compensation on the basis of unlawful dismissal.
Employers are often vague about the reasons why they are considering dismissing an employee, in order to avoid hurting that employee’s feelings. However, this is the exact opposite of what is required of an employer in this situation.
When summoning an employee to a hearing, the employer must be straightforward and make it clear to the employee that he or she is being summoned to a hearing with regard to possible dismissal and not merely for another conversation. Additionally, the employer must explain to the employee all the reasons that led him or her to consider dismissing the employee, as well as provide the employee with all relevant information.
This is the only way the employee can properly prepare for the hearing and the complaints being raised against him or her. If there are a number of reasons for the dismissal, explain them all to the employee.
2. Time to prepare
Once the employee has received the explanations of the reasons for considering his or her dismissal, and has received a summons to a hearing, the employer must give the employee enough time to prepare. It is advisable to allow the employee at least a few days. If the employee asks for a brief postponement of the hearing, it is best to agree to this request.
It is also highly advisable to allow a postponement if the employee expressly states that he or she did not have enough time to prepare, or that he or she wishes to consult with an attorney beforehand.
3. Personal and respectful approach
It’s true a dismissal process is not pleasant. But precisely because of this, the employer should treat the employee respectfully and considerately.
The employer must respect the employee’s privacy and dignity, and should not involve others in the hearing, apart from the relevant supervisors and managers.
Try to hold the three meetings in the dismissal hearing process in-person and face-to-face. Avoid impersonal means of communication, such as texts, telephone calls, and emails. Give the employee all due respect and face him or her, even if it might be unpleasant.
Allow the employee the latitude to make choices wherever possible and ask what he or she prefers (regarding the date of the hearing, the location of the hearing, a hearing in writing, etc.).
And, obviously, do not announce the employee’s dismissal before the dismissal notice has been issued to the employee.
4. Keep an open mind
Do not notify the employee of your decision on the date of the hearing or at the outset of the hearing.
Keep an open mind and really listen to the employee. He or she might surprise you. After you truly and honestly consider the matters, you might decide to give the employee another chance or to transfer him or her to another role inside your organization.
5. Documentation, documentation, documentation
Documentation of the hearing proceeding is extremely important, particularly in the event an employee raises allegations of unlawful dismissal.
Therefore, draw up detailed minutes of all conversations held with the employee, and issue a letter to the employee officially summoning him or her to a hearing. Make sure to document all key points that were conveyed orally to him or her.
There is also no impediment to making an audio recording of the hearing conversations.