Employee Pre-Termination Strategies (1999)
There is a wonderful saying the best defence is a good offense. This is particularly prudent advice if one senses that he or she is about to be fired from their job. The question this week is therefore, what strategies can an individual employ in order to protect his/her legal position if it appears that dismissal from his/her employment is imminent?
The first thing to do before being fired is to consult a lawyer specializing in employment law. If you have talked to counsel before being fired, you will have confidence during the termination interview to not be pushed into signing improvident agreements or inadequate settlement packages. There is much to be gained by saying at an exit interview that your lawyer will be reviewing the situation and will get back to them. This gives you a psychological boost and puts the company on notice that you are not going to go quietly into the night. Also, being armed with information about your rights and obligations will put your mind at ease.
If just cause for your imminent dismissal is likely, a discussion with your counsel before hand is advised. Your lawyer will tell you what company documentation will be needed. You can then collect whatever is needed before your presence on the premises is no longer permitted. This is not to say that you should confiscate company property. But you should make copies of any employment contracts or any documents that relate to the terms and conditions of your employment at a minimum.
If your relationship with your employer is going downhill, keep a daily diary as to what is happening. Include in your diary a summary of any conversations, with whom, what you said and what was said to you. This is very helpful for your lawyer who will be able to reconstruct the “atmosphere” you were living through before being fired. Making contemporaneous notes about how the work environment is affecting you emotionally, physically or mentally, is also very helpful evidence.
If you have been given a memorandum relating to your performance and you are asked to respond, you should consult a lawyer before replying. Your response may well make or break your case.
Now let’s jump ahead to the termination interview. Now is the time to ask for a letter of reference. The person conducting the interview will likely be feeling sheepish enough and may well commit to giving you one. This is good as a letter of reference has the effect of weakening your employer’s later argument that you were dismissed with cause.
You should also ask for reasons as to why your employment was terminated. Providing written reasons will make it very difficult for your employer to add more reasons after your termination unless the employer can show the trial judge that it knew about these reasons before you were fired. Finally, take careful notes during the interview.
There is nothing like being prepared for life’s left hooks. You can be better prepared by consulting a lawyer if you think your employment is in jeopardy.
