Antony’s performance has been hampering in the last few months. He becomes sluggish and unable to meet deadlines. Seeing this, the manager tries his best to help Antony be productive again by ensuring his welfare and happiness. Yet, despite the efforts, Antony does not show any increment in his performance. The manager then asks the HR department to help with the case. The next day, HR manager sends Antony a letter of warning citing that if he is unable to improve his performance, there will be termination. Getting the letter, Antony who has been working with the company for almost 10 years feels that he has been mistreated by the employer. So, he called an attorney to deal with the case.
Dealing with difficult employees like Antony can leave a severe headache to the manager and HR department. Oftentimes, HR should deal with the court and legal problems when they come unprepared in their employee’s dismissal. If you ever or are currently in the same situation, here are some tips to legally terminate your difficult employees.
As an employer, when seeing your employees are underperforming, you should not put all the blame on them. You should first ask and self-reflect to the working culture you create. It can be that your employee is undergoing a family problem and there is no support from the employer. Or, your employees might be disengaged because the company fails to provide wellbeing or development programs.
After you understand the reason, make sure you do everything to help employees out of their situations and document everything possible of your effort. That said, when it comes to terminating employees, you can showcase that you have done your best to help the said employees.
You can also put the difficult employees on a PIP program to help him go through his tough situation. PIP programs are often launched by managers to give underperforming employees the opportunity to succeed in their job. It can be an effective way to address employee’s failure who are unable to meet specific job goals or to ameliorate behaviour-related concerns. If you want to conduct a successful PIP, see the steps here.
Each employer must have an employee handbook, company policy, and employment policy. Before talking about terminating employees, do read the company’s policy on termination and dismissal. Does the reason for termination align with your company’s rule? Have you fulfilled all the requirements for the dismissal?
After that, make sure you review your employee handbook to avoid misunderstanding or confusion. This should also be done to ensure that your employee handbook and employment policy are synchronous. Hence, you can lessen the chance of legal problems in the future.
If your employee handbook has yet to cite any reason for termination, you should first rewrite the employee handbook. This will ensure that you stay away from legal problems when an attorney is trying to review your company policy. Once you renew your employment handbook, make sure to distribute it to all stakeholders and let them know the points of changes.
State employment law is constantly changing, thus, there is a great chance that termination law has also been renewed by your government. Therefore, you should once again read your country’s law about employment practice before terminating difficult employees. Here is a short review about termination law in Indonesia, Singapore, Malaysia, and India.
Termination of employment in Indonesia is regulated under Labour Law and Law No. 2 of 2004 of the Settlement of Industrial Relations Disputes. GBG Indonesia mentioned that there are two termination practices, including termination with cause and termination without cause. In addition, an employer should provide severance payments (Manpower Law No 13 the Year 2003) depending on the length of work of the terminated employees. A 30-day notice period must also be given to terminate an employment contract.
MOM Singapore divided termination into four parts, including termination with notice, termination without notice, termination due to employee misconduct, and wrongful dismissal.
Termination with notice means employers should give termination letters to employees days or weeks before the dismissal. The days and weeks are depending on the lengths of service of employees. Employers and terminated employees must also make CPF contributions for salary earned during the notice period.
Termination without notice can happen in such a situation when an employer breaks the terms of the contract, the employer fails to pay salary, and employees take absences without valid reasons. In this case, employers still need to pay monetary compensation for terminating the contract before a specified period. This, however, is not covered by the Employment Act. This is only based on the contract of service between employer and employees.
Termination due to misconduct is a serious disciplinary that should be handled carefully. Employers must conduct a formal inquiry before taking any disciplinary action. Once the misconduct case is found, termination can be done without notice and not salary in lieu of notice will be paid.
Wrongful dismissal is meant for employees who think they have been wronged by employers for the termination practice.
According to the Department of Labour Peninsular Malaysia, there should be a notice of termination unless dismissed for misconduct or poor performance. The minimum length of the notice period should be an agreed term in the employment contract. Employers can serve a garden leave to employees during their notice period. In addition, only employees under the Employment Act are entitled to statutory termination benefits upon retrenchments. Employees under non-Employment Act are at the discretion of employer for retrenchment benefits unless provided for under the employment contract (agreement between employees and employers).
In India, termination practice depends greatly on the state laws where the business is operating. For example, labour law in Maharashtra stated that employers cannot terminate an employee who has been with the company for more than a year without giving the employee at least 30 days of notice in writing. If the employees work with an employer for three months but less than a year, an employer must give notice at least 14 days beforehand. The notice, however, is not necessary if employees are being terminated for misconduct.