Employees and employers are bound together in a unique
relationship and breaking up is often hard to do. There are
amicable separations, however quite often there is a fundamental
breakdown of trust and confidence, sincere disappointment and even
hurt. Both parties need to survive the breakup and each has an
interest in achieving a happy ending – even if it has to be
manufactured. Employers will most often be the party best equipped
to offer a sensible solution. Whenever it happens, and whatever the
reason engaging legal representation will assist to remove emotion
and focus on issues rather than personalities.
A termination is better managed as a negotiation than a
Resignations can disappoint an employer – an employee is
an investment and a resource with valuable knowledge and their
departure will often be a real loss. Even where there is no love
lost and the employer is happy to let the employee go, a sudden
fear of infidelity may arise in relation to clients or competitors.
An employer may also worry about how to ensure the role is
effectively handed over to a replacement without disrupting client
service or team morale.
Although the employee has now scheduled the relationship for
termination there is still time to negotiate how the breakup will
occur. By offering early release from the contract or an additional
payment a deal can be struck that suits all and ensures a
relatively smooth transition. A carefully crafted deed of release
can enhance the existing employment contract as necessary and firm
up obligations in relation to confidentiality, restraint of trade,
non-disparagement, notice period, return of company property and
Emotions can and do run high where individuals are sacked. The
Courts recognise that employees are usually the more vulnerable
party in the relationship and so will expect employers to ensure
they have not abused their more powerful position. Employees should
be told what the employer is unhappy about and be given a fair
chance to mend a relationship that is on the rocks. However, where
the trust and confidence is gone it isn't surprising that
despite any explanation given or promise made the employer wants to
proceed to terminate the employment.
In many situations an employer deciding to give notice and
terminate a contract will be justifiable, reasonable and lawful.
However the practical reality is that no matter how well you
followed your internal procedures, no matter how many written
warnings you issued or how carefully you performance managed a
sub-standard employee that person can very easily lodge an unfair
dismissal claim. Even worse the current law requires employees to
do so in the immediate aftermath of their dismissal (when emotions
are at their most raw). The unfortunate result is that in many
cases a disgruntled employee simply sees they have nothing to lose
by lodging an unfair dismissal claim. Once proceedings in relation
to a termination are begun an employer is necessarily drawn in and
must respond to the claim and participate in conciliation. More
often than not a small settlement payment is made to the employee
at conciliation to simply end the matter.
A better approach may be to invest time, money and effort into
trying to achieve a mutually acceptable termination of the
employment contract. Offering a payment over and above an
employee's notice entitlements can soften the blow for the
employee and be made on condition that no further legal action will
be taken and that neither party will denigrate the other. If
appropriate a statement of service can be provided to assist the
employee to gain new employment. It is a delicate process that will
involve a risk assessment and careful drafting but once again early
involvement of a lawyer can assist you to strike a deal and ensure
a relatively happy ending.
Legal actions around termination of employment contracts often
need to be taken rapidly, decisively and carefully. The lawyers at
HHG Legal Group can assist you to make the right move.
They waved goodbye and all worked happily ever after......The
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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