HRD talks to Sherridan Cook, partner at Buddle Findlay, about how employers can get in trouble during the termination process
Too many employers run into trouble during the termination process by not investigating matters fully or by rushing through an investigation, according to Sherridan Cook, partner at Buddle Findlay.
“For example, they may not have investigated all of the witnesses or they may not have put all of the information that they have gathered which is factoring into the decision to the employee who is under investigation,” Cook told HRD.
“So, they breach their duty of good faith which requires them to put all of the information to the employee so that they can take an opportunity to comment on it before the final decision is made.
“It is probably the most common pitfall, just rushing through with the investigation and not really dotting the I’s and crossing the T’s.”
Cook said other pitfalls often involve putting allegations to the employee that they regard as being quite serious but in context they are not as serious.
Consequently, they may take a disciplinary step such as dismissal when really that wouldn’t be justified.
Moreover, employers might predetermine in their own mind what the outcome is going to be without going into it with an open mind and wanting to hear from the employee.
“For example, often if an employee fails a drugs test the employer’s reaction to that might be that they have got to be dismissed,” said Cook.
“In fact, the employee might have a valid reason for having failed the drug test or has some explanation that is related to work.”
For example, they may have failed a drugs test and then said: “I actually smoke marijuana on the weekend because I was so stressed about the bullying that was caused by my manager at work”.
That’s the kind of situation that might be difficult to terminate, according to Cook.
“So, employers shouldn’t just assume that just because on the face of it looks like the employee has committed misconduct that they are actually going to be able to dismiss them.”
