Legal process involved when firing an employee

Employers are being urged to ensure they follow the legal process when intending to fire an employee. Employees are also encouraged to get sensitized on their rights should they be faced with that scenario.

Director at Human Resources Management Association of Jamaica, Colinnette Wilson said the proper process of dismissing employees usually starts with a hearing which provides the employee with the opportunity to be heard.

She said while that process can be technical, it allows employers to cover all legal bases before arriving at any decisions.

“If you do not do that you may end up in a situation where the employee sues you and you have to pay them or you may have to re-engage them and if they are out of the organization you may have to pay them for any time out,” explained Wilson.

Wilson said employees should also be given an opportunity to appeal after the hearing if they felt they were mistreated by the panel. She added that while different organizations may differ in the number of persons making up said panel, best practice should be at least 3 to 4 persons, noting that the employee must have the opportunity to also take along another person with them; usually a union representative, family member or colleague.

“You can fire them after the hearing but you don’t want to tell them at the hearing because it may seem premeditated. You may want to go back through your notes, have discussions with the other persons in the hearing and then come to a decision and then you communicate that decision with the employee afterwards and you communicate it in writing,” said Wilson

“If the steps are not followed to the t then the employer is going to be in trouble with the law,” she added.

She said for smaller companies the process may prove challenging however it should still be done, possibly with the help of third party assistance.

“At the hearing you will put to the employee the argument that has come up to give them a chance to say what actually happened and after you have allowed them to speak you may ask questions of the person,” she said.

Meanwhile before a hearing should even be considered, Wilson said issuing an initial warning should be given to the employee, which has become a staple practice within organizations. She also said disliking an employee cannot be grounds for dismissal.

“Most organizations have a grievance procedure and that tells you when the employee has committed a breach, it’s kind of a progrssive discipline in a sense,” she reasoned

At the same time, she said there are periods where an employee can be let go without having to go through a hearing. That she said can depend on the duration of employment for the employee.

Most organizations implement probationary periods for new employees. Typically that can be three months or ninety days, during which time the employer or the employee has the right to call it quits.

“So the employer can fire someone during that probationary period and no questions need to be asked as there is no obligation there strictly speaking. After that 90 days, even if the person is still on probation you do not have that right to just fire somebody like that. There’s the process that you have to go through but what you can do is suspend that employee and you can suspend them with or without pay, most do it with pay to make it easy in the proceedings,” Wilson explained.

Meanwhile Wilson said good practice involves assessing employees at least three times per year. She said assessments are good to set objectives for employees and to ensure gaps are closed.

She said staff who may be an annoyance for others should be referred for counselling or mentorship to try and get attitudinal changes.

If you’re in need of legal guidelines on how to fire someone, you can contact the Ministry of Labour and Social Security, the Human Resource Management Association of Jamaica or any law firm specializing in employment law.

Visit EXIM Bank’s Business Advisory Service at:
https://eximbankja.com