as “Wrongful Dismissal.” This would in-clude discrimination on the basis of race, sex, religion, age, nationality or sexual orientation. You cannot fire an associ-ate who filed a discrimination claim, re-fused to commit an illegal act, or has a statutory right. However, the law is not unfair. It provides the employer the op-portunity to prove that the dismissal was not wrongful or prejudicial. STILL, BE CAREFUL! Methodically document the reasons for, and the steps you have taken in, bringing about this action. Once you have decided to do it, a wise idea is to consult with your lawyer and lay out the plan. You are dealing with well-educated professionals. You may have to defend your actions before a judge. You might not be guilty of wrong-ful dismissal, but the cost of proving your innocence could be exorbitant. If you get sued, never take with you to court any notes that are not completely aligned with your primary purpose and could be picked apart to be construed as having even the slightest hint of preju-dice. Better yet, don’t take any paper of any kind – leave this up to your lawyer. Some years ago, when defending a ma-jor project foreclosure, opposing counsel snatched my sheath of notes and used some of the information therein against me. Destroy any such data that may be in your files. BEFORE TERMINATING Discharging an employee should never be a “shoot from the hip” reaction to a specific situation. It should be a well-thought-out, yet timely, process. But, don’t delay it unnecessarily. When oper-ating a real estate and business appraisal practice, an employee of mine – this per-son was hired to be an appraiser – strug-gled with appraisals and I struggled with him for about six months. Had I dis-charged this chap much earlier, I would have done both of us a favour. There was no way to correct his poor performance! He had the desire to be an appraiser but lacked the ability. Good at book learning but poor in practice! When in a similar situation, you must satisfy yourself that you have taken all steps to ensure that terminating this as-sociate is the correct action and that do-ing so is best for all. www.canadianchiropractor.ca THE STEPS • Unless you have prior knowledge, begin with a detailed investigation into cause and probable action. • Ensure that the problem or allega-tions are real and have been or can be substantiated. • Have a sit-down with the associ-ate and in an open, non-prejudicial manner discuss the problem or allegations. • Give the associate every opportunity to respond. • Try to find an alternative solution to dismissal. • Most importantly, when you are certain that the problem(s) cannot be resolved do not sweep it under the rug. Act with discretion and candor. ality, patients’ files, ongoing patient retention and he/she becoming a competitor. AFTER THE TERMINATION Some remaining associates may think you have acted too harshly and prema-turely. Others will wonder what took you so long. Saying “it’s not your concern,” or something of this sort, may not cut it. You must gauge yourself as to how much explanation is required and you are pre-pared to give. There is no definite rule regarding how to deal with these situa-tions. Play it by ear and hope for the best. So far as I can establish, there are no provincial or federal laws that govern what you can or cannot say to a prospec-tive employer about the now-departed soul. Although not legally required, you Discharging an employee should never be a “shoot from the hip” reaction to a specific situation. It should be a well-thought-out, yet timely, process. DOING THE DEED • Having concluded that there is no alternative, take a day or three to plan the exit interview so that it cre-ates the minimum of anguish for both you and the associate. • Be certain to provide a detailed ex-planation of why you are taking this action. Be clear about the reasons. • Document those reasons. • Whether to provide the employee a termination letter setting out your reasons is argumentative – it’s your call! • Avoid making personal, degrading or vague statements or saying any-thing that might suggest the situation is reversible. • Consider the possibility of an irrational, negative or combative reaction and perhaps an appeal. • Having reached this point, do it now, not tomorrow or next week. Now! Never allow an employee a few days or weeks to get his/her things in order. This only permits this person to do nothing to further your pro-fessional practice, but to perhaps badmouth you. • Resolve the issues about confidenti-may wish to provide a valid reason for the termination. Because of concern about being liable for defamation of character – or the reverse where you give a non-factual glowing recommendation – it is probably best to provide only the date of the termination. THE BOTTOM LINE Discharging an associate, particularly one who has been with you for some time, will always be stressful for both you and him/her. Because of the possibility of the situation getting out of hand, be certain to go about it carefully, methodically and with forethought. Know and understand the protection given to employees by the laws of your province. You could be sued for a tort action, wrongful dismissal and prejudice including punitive dam-age for pain, suffering and anything else that comes to some high-priced lawyer’s mind. As you are dealing with an edu-cated professional, it is wise to consult your own lawyer and let this person draft the dismissal letter should you choose to use one. You can legally discharge an unsatis-factory employee but doing it hurriedly can too easily backfire. • CANADIAN CHIROPRACTOR | DECEMBER 2012 • 33
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