July 31, 2020
by Amber Weber & David Harris, Prosperident
No employment relationship lasts forever. Sometimes, employees leave of their own volition. People find other jobs, retire, or pass away. At other times, the employee is fired because they are incompetent, unmotivated or a thief.
There can be sizeable financial implications to how an employee exits, and the purpose of this article is to assist practice owners in dealing with this inevitable issue.
We should mention that, while this article discusses general concepts, it is not a substitute for obtaining situation-specific advice from an employment lawyer or HR expert. Employment law can be complex, varies between provinces, and is constantly changing. We should also be mindful that the law around employment exists primarily to protect workers, not employers.
The Legal Background
In Canada, generally, an employee who quits has no entitlement to severance. There are exceptions, including coerced resignation (which happens when you say “Quit, or I will fire you”), and something known as “constructive wrongful dismissal” where an employer changes employment conditions to where the employee is forced to quit. These situations are treated as terminations by courts.
Many dentists incorrectly believe that they can’t fire their long-serving staff. As long as it is not discriminatory (as defined by your provincial human rights legislation), you can fire any employee any time for any reason. However, whether or not a termination is discriminatory is subjective, and even for terminations that do not involve discrimination, you may have financial consequences for letting an employee go.
The rules in most provinces permit a probationary period (often three months). During probation, termination is painless. After probation, employees begin to acquire rights on termination.
Firings fall into two categories; termination for just cause and termination for “other than just cause.” This distinction is critical because a just cause firing creates no obligation for notice or severance pay.
However, terminating for other than just cause obligates the owner to give either “reasonable” notice or pay instead of that notice. Most dental employers find keeping a “lame duck” employee unworkable, so they pay out the notice period instead.
The determination of “reasonable” can be challenging; provincial employment laws provide minimums (typically one week per year of service). Normally terminated employees get considerably more by taking their ex-employer to court, and severance awards of between two and four weeks’ pay per year of employment are common. Therefore, an employee with 15 years’ seniority can expect severance of between six and 12 months’ pay.
Contrary to popular belief, seniority is not reset by an ownership change (the “successor employer” rule). If you bought your practice five years ago when an employee had already worked there for six years, they currently have 11 years of seniority. Performing a perfunctory termination and rehiring at the purchase does not “break” this seniority.
Establishing Cause can be Challenging
Clearly, termination for cause is more economical for the practice owner. However, “just cause” is narrowly defined, and the burden of proving that cause exists belongs to the employer.
Some common examples of cause are:
Some of these factors, like embezzlement, warrant immediate dismissal. However, most require a recurring pattern of uncorrected misbehaviour. For example, the first time an employee shows up 10 minutes late if you choose to fire them, it probably will not meet the standard for cause. However, counselling and documentation (sometimes called “progressive discipline”) for repeated occurrences with warnings for future consequences will enable you to establish just cause.
Court decisions suggest that performance-based dismissal for cause should not take an employee by surprise, which is why documented progressive discipline so important.
Progressive discipline often involves three stages – a written warning at the first transgression, a suspension on the second, and termination on the third. At each stage, the employee should understand the consequences of a subsequent failure.
Documentation of the event, the action taken, and confirmation of the consequences of further shortcomings must be placed in the employee’s personnel file.
When progressive discipline is conducted, a witness should be present. Each transgression doesn’t need to be the same as the previous one as long as the employee is aware of a failure to meet the practice’s standards and the consequence of future failure.
Your Whole HR System Plays a Role
What many practice owners don’t realize is that to position themselves for just cause termination when someone needs to go, the groundwork must be laid well in advance of the identification of a specific problem employee. Some of the preparation is done before the employee is even hired. Like when treating a patient, a systematic approach yields more predictable outcomes.
Let’s be honest – many practices operate without much of the human resources framework that other businesses use. We are talking about some basic things like written employment agreements, meaningful job descriptions, and a concept that makes practice owners cringe, honest performance reviews.
Employee agreements should never be of the “cocktail napkin” variety; you need proper agreements designed by a lawyer familiar with your provincial employment regime. This does not mean that you need a lawyer each time you hire someone; a good employment lawyer can help you design a fill-in-the-blanks agreement that can be used repeatedly.
Without these HR building blocks, establishing just cause becomes an uphill battle. If you want to assert incompetence on the part of one of your assistants, (in other words that they have not been doing their job) you need to be able to establish what that job was, and that you have made it clear to the assistant that his or her performance did not meet the standard you have established.
Remember what we said about the onus is on the employer to prove their case, and that generally employment law exists to protect employees? The absence of a written job description will compromise your case, and the lack of performance reviews (showing that you had made the assistant aware of their deficiencies) will probably completely end your chances.
Not having these HR pieces can hurt you in other ways as well. Embezzlers who steal by manipulating payroll frequently escape legal consequences because the practice owner cannot prove what their correct entitlement to pay is. A ten-year-old contract that has not been updated across several pay raises and other changes is useless at establishing what current pay should be.
Dentistry has gotten out of step with how other businesses hire. You can’t get a volunteer position coaching kids without a criminal records check, but you can work in a pediatric practice treating the same kids without one. With one in 10 Canadians having criminal records, skipping this vital step involves a huge risk. Similarly, few practices perform drug testing, notwithstanding the access that staff have to the prescription process.
Add to this a reluctance for practice owners to make phone calls to former employers of an applicant, and the result is that dentists know far less about applicants than they should. Investing more time in vetting applicants protects you from the time-consuming and sometimes costly process of termination.
Lead, Don’t Follow
We have encountered many dentists who put up with substandard employees because their duties are not well documented, and no one else is cross-trained to take over. Making an employee indispensable because you are scared to lose institutional knowledge if they leave is never a good position.
Honesty is the best policy
One problem that practice owners create is that either they do not do regular performance reviews, or that reviews fail to address substandard performance. Not dealing with the elephant in the room when doing reviews will hurt you when you wish to fire someone. Establishing performance-based just cause is difficult without a trend of unsatisfactory reviews. As mentioned, courts do not appreciate termination for incompetence that takes the employee by surprise
The temptation to avoid confrontation, either by eschewing performance reviews completely, or doing cursory reviews that avoid the real issues is strong. There is a skill in presenting areas for needed improvement in a constructive manner that any practice owner can learn.
Make the End Go Smoothly
Regardless of an employee’s transgressions, it is important to preserve their dignity when firing. For example, termination should be planned when no one else (except your witness) is in the office, so the employee is not forced to clean out their desk in front of co-workers. Doing this “walk of shame” is humiliating and may encourage them to sue you or otherwise retaliate.
It is important to “lock down” the practice’s premises and electronic access concurrent with termination so that the employee has no access to the practice’s computer system or online presence like the office Facebook page. We offer a termination checklist that includes many important steps. Email us at email@example.com if you would like it.
Terminations take preparation, and accordingly, we discourage hasty firings. Even for an egregious act, it is better to suspend the employee than to discharge them immediately. This suspension allows you time to prepare, and also prevents firing when angry, which is never a good approach.
Just like any relationship, ending your employee relationship can take time, resources and cause stress and emotional strain. While saying goodbye to an employee is one of the most unpleasant tasks a dentist faces, proper HR framework, knowledge and preparation will equip you with the ability to make this part of your job much easier. Having clear written policies and procedures with your team with clear expectations will put you in the driver’s seat and no longer be a passenger in the operation of your practice.
About the Author
David Harris is Prosperident’s CEO and is the author of the book Dental Embezzlement, The Art of Theft and the Scient of Control. Prosperident, based in Halifax NS, is the world’s largest and longest-established company investigating embezzlement committed against dentists. Amber and David can be reached through Prosperident’s website, www.dentalembezzlement.com