Lets talk. Getting Your Bases Covered in a “without prejudice” Conversation.

We all know that terminating an employee is never going be a party.  It’s especially hard when it’s not a serious performance or “fit” issue……sometimes it’s not even as black and white as that.

Think about an employee who has been with you a while…..performance just isn’t there anymore, there’s no commitment or enthusiasm to improve despite trying to coach the employee back to the level they used to be working at.   The employee is obviously not happy, and neither of you are getting any value from the working relationship.   Maybe its time to part company – but what options do you have?

This is not necessarily an opportunity to terminate “with cause”, and there may not be a reorganization or restructure to pin the blame on.  One option to consider is to have a chat with the employee to lay the cards on the table, talk about how the relationship doesn’t seem to be working anymore, they are obviously not happy and you would like to try and reach a mutually acceptable exit strategy.

Bear in mind that this “chat” could expose the company to further liability should the content be used against you in any future legal action from the employee.  The only way to avoid this is to make the conversation “without prejudice”.  This means that (like you would use a “without prejudice” letter), the content of the conversation becomes “privileged” and can not be used against either party in litigation. It does not mean that you are free to say whatever you like – the employee is still protected against any discriminatory or prejudiced remarks and actions.

You will need to be sure that the employee knows exactly what that means, so explain it.  If the employee should  refuse a “without prejudice” conversation, make sure you are prepared with your next steps – you have committed yourself to action at this point.

Of course you won’t be at all surprised to hear that even this “without prejudice” option isn’t without its complications……just like an outright termination, you will also need to consider any other circumstances that surround this employee.  For example, an employee who has returned relatively recently (certainly within the last 6 months), from a WSIB leave will still have  the protection of WSIB legislation around re-employment, and that particular organization will not share your joy for  any agreement made to exit the employee in this case – regardless as to whether the agreement was mutual or not.

WSIB may even go do far as to investigate the situation (within 48 hours of the second they hear about it!) as they may consider you non-compliant in your re-employment obligations, resulting in fines or penalties for your organization.

As with all areas of your business, make sure you know everything you need to know in able to make the most informed decision.  Ensure that you have documented all relevant events during the employee’s service (I am aiming high on that point I know, but trust me…….it’s worth it). Exercise due diligence – and some common sense wouldn’t hurt either – to protect or at least minimize exposure to risk for your organization.

As my last words of wisdom on this topic – Employment Law, WSIB, and Human Rights legislation can be very complex and taking the conversation “off-line” so to speak, does make you exempt.   Ensure that you review such legislation regularly – or better – seek guidance from a professional who is experienced in interpretation of such matters.

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