Understanding the Legalities of Firing Employees

Terminating an employee on grounds of poor performance is a sensitive and legally complex process. As HR practitioners, it is essential to ensure that all necessary steps are taken to protect both the organization and the employee’s rights. Here are the basics that i believe should be embraced before signing a termination letter for poor performance: 1. Clear Performance Expectations Job Descriptions: Ensure that the job descriptions are clear, detailed, and provided to the employee from the beginning. Performance Metrics: Define and communicate performance metrics and expectations clearly to the employee. 2. Documentation Performance Reviews: Conduct regular performance reviews and provide feedback. Document these reviews and any discussions about performance. Written Warnings: Issue formal, written warnings when performance does not meet expectations. Document the details and the employee’s response. 3. Performance Improvement Plan (PIP) Implementation: Create and implement a Performance Improvement Plan if performance issues are identified. The PIP should outline specific goals, resources provided, and a timeline for improvement. Monitoring and Support: Regularly monitor progress and provide support. Document all interactions related to the PIP. 4. Training and Development Opportunities Provided: Ensure the employee has been given adequate training and development opportunities to improve their performance. Supportive Environment: Create a supportive environment where the employee feels they can seek help and guidance. 5. Fair and Consistent Procedures HR Policies: Adhere to the organization's HR policies and procedures related to performance management and termination. Consistency: Apply performance management processes consistently across all employees to avoid claims of discrimination or unfair treatment. 6. Legal Considerations Employment Laws: Ensure compliance with local, state, and federal employment laws. Consult with legal counsel if necessary. Anti-Discrimination Laws: Ensure that the termination is not discriminatory or retaliatory. Review the employee's protected characteristics and any previous complaints they may have filed. 7. Final Review Manager’s Input: Obtain input from the employee’s direct supervisor and ensure they are in agreement with the termination decision. HR Review: Conduct a final review by the HR department to ensure all steps have been followed and documentation is complete. 8. Communication Plan Termination Meeting: Plan a respectful and private termination meeting. Be clear, concise, and compassionate. Severance and Benefits: Clearly communicate any severance pay, benefits continuation, and outplacement services if applicable. 9. Post-Termination Procedures Exit Interview: Conduct an exit interview to gain insights and provide feedback to the organization for future improvements. Data and Property: Ensure the return of company property and secure any data or access that the employee had.

In Kenya, termination is not just about saying ‘you’re fired.’ It’s a process defined by law. under the Kenyan Employment Act (2007), termination is not just about ending a contract. It’s about fairness, procedure, and justification. The Act requires that: 1️⃣ Valid Reason – Termination must be based on valid grounds, such as misconduct, poor performance, or redundancy. 2️⃣ Fair Procedure – The employee must be informed of the allegations, given a chance to respond, and allowed to be accompanied by a fellow employee or union representative during a disciplinary hearing. 3️⃣ Notice or Pay in Lieu – Except in cases of summary dismissal, employees are entitled to notice as per their contract or the statutory minimum. 4️⃣ Documentation – Employers must keep proper records, letters, minutes of hearings, and notices to demonstrate compliance. Termination is not an event, it is a process. Skipping steps or overlooking fairness not only damages trust but also exposes the employer to costly legal battles. Do you think organizations in Kenya are doing enough to ensure managers understand the legal process of termination? #KenyaEmploymentLaw #Termination #HR #LabourLaws

Retrenchment (Generally called layoffs incorrectly) in organizations in India is not a unilateral managerial act. It is regulated by a legal framework that balances business restructuring with the social and economic security of workers. Section 25N of the Industrial Disputes Act is applicable to establishments employing 100 or more workmen. The provision sets out clear mandatory conditions to be followed before any employee, with at least one year of continuous service, can be removed from the employment. 1. Preconditions An employer cannot proceed with termination of employees unless: * The employee is given three months’ written notice specifying the reasons, or wages in lieu of such notice; and also * Prior permission is obtained from the appropriate government or notified authority. 2. Permission Process The employer must apply in the prescribed form, with reasons duly stated. A copy must be served on the concerned employee. The government or authority, after enquiry and hearing both sides, may grant or refuse permission, recording reasons in writing. 3. Deemed Approval If no decision is communicated within sixty days, permission is automatically deemed granted. This prevents administrative inaction from stalling industrial operations indefinitely. 4. Finality and Review An order, once made, binds all parties for one year. However, the government may review its decision or refer the matter to a Tribunal, which must decide within thirty days. 5. Illegality of Termination of Employment Without Permission from Government If the employer bypasses the requirement of prior permission, or if permission is refused, such termination of employment is deemed illegal. The employee retains all rights as if no termination happened. 6. Exceptional Circumstances In cases such as accident in the establishment or death of the employer, the government may relax the mandatory preconditions in the interest of continuity. 7. Compensation Where termination of employment is lawfully carried out, each affected employee is entitled to compensation equivalent to fifteen days’ average pay for every completed year of service, or part thereof exceeding six months. The legal philosophy underlying Section 25N is clear: mass termination of employees is not merely a contractual issue but a matter of public policy, industrial peace, and social justice. By requiring notice, prior government approval, and statutory compensation, the law ensures that restructuring decisions in large enterprises are transparent, accountable, and mindful of human impact. In practice, this provision has made retrenchment a carefully scrutinised process. It highlights the evolving role of labour law in India not to obstruct industrial growth, but to ensure that the pursuit of efficiency does not come at the cost of arbitrary loss of livelihood. #IndustrialDisputesAct #LabourLaw #EmploymentLaw #Retrenchment #layoffs #NITES

Compliance in termination is more than a legal requirement — it’s a reflection of your company’s professionalism and reputation. Termination of Employment in the UAE: What Employers Must Know  In the UAE, termination of employment is governed by Federal Decree Law No. 33 of 2021 (and its amendments). For employers, understanding and applying the correct procedures is critical — not only to stay compliant but also to safeguard the company’s reputation and reduce legal risk. ✅ Key Compliance Points for Employers: 1️⃣ Grounds for Termination Employers may lawfully terminate due to redundancy, underperformance, disciplinary breaches, or business closure. Clear documentation is essential to justify the decision. 2️⃣ Notice Period Employers must provide 30–90 days’ notice (unless waived by mutual agreement). Proper notice avoids potential claims of unfair dismissal. 3️⃣ End of Service Benefits (EOSB) Payable after 1 year of service, based on basic salary: 21 days’ salary per year for the first 5 years. 30 days’ salary per year thereafter. 4️⃣ Final Settlement Obligations Employers must ensure timely payment of: Unpaid salary. Leave encashment. EOSB (if applicable). Any contractual entitlements. 5️⃣ Visa & Work Permit Cancellation Employers are legally responsible for cancelling the work permit and visa. Employees then have 30 days’ grace period to regularize their status. 6️⃣ Probationary Period Termination During probation, 14 days’ written notice is required. If the employee moves to another employer, compensation may be payable under MOHRE rules. ⚖️ Why Employers Should Pay Attention Failure to follow due process can expose companies to legal claims, financial penalties, and reputational damage. Compliance is not just about following the law — it demonstrates professionalism and reinforces trust with both employees and the wider market. A structured, compliant termination process protects the business while maintaining fairness and professionalism. In today’s competitive market, how you part ways with employees is just as important as how you hire them.

In Flannery v. Peco Foods, the 8th Circuit just provided a sharp reminder of how far the gap can be between what's "legal" for individuals and what's protected in the workplace. Flannery was fired after a drug test showed THC in his system. He said it came from CBD oil, pointed to the company handbook, and argued his levels were under the listed threshold. None of it mattered. He worked in an at-will employment state, and the court said plainly: employers can terminate "for good cause, no cause, or even a morally wrong cause." That same lesson applies in Ohio, even after the state legalized recreational marijuana use last year and medical marijuana five years earlier. Here's what Ohio law actually says about marijuana and employment: Employers may prohibit use. The statute expressly allows employers to maintain drug-free workplace policies. If your handbook says "zero tolerance," legalization doesn't change that. Employers may test for marijuana. Nothing in the law restricts drug testing for cannabis. Employers can continue to screen applicants and employees. Employers may discipline or terminate. An employee who tests positive—even for lawful off-duty use—can be fired. There's no protection under Ohio law, even if marijuana was consumed legally and outside of work hours. No wrongful-discharge claim. The statute makes clear that firing someone for cannabis use does not create a cause of action. In other words, employees cannot sue for being terminated after a positive test. Unemployment benefits may be denied. If the termination is for violating a drug policy, that can disqualify the employee from unemployment compensation. Ohio's legalization of marijuana is a criminal law reform, not an employment law reform. Employers hold the cards, and the law explicitly protects their right to enforce drug policies as they see fit. Employers, if you want to prohibit your employees from using cannabis, review your policies and communicate clearly. If you intend to enforce a zero-tolerance rule, spell it out and apply it consistently. If you're considering relaxing your policy, weigh the risks—especially around safety-sensitive roles, federal contracts, and workers' comp discounts tied to drug-free workplace programs. No one should assume that what's legal in the dispensary is legal in the workplace. A positive test can still mean discipline, termination, and ineligibility for unemployment.

Over the weekend, I came across a court ruling highlighting a surprising legal reality: an employee who admits to breaking company rules can still have a valid discrimination case. Here's what happened: A team leader at a supermarket chain was responsible for overseeing the food service and deli departments. One of her key duties was maintaining food safety logs. The company had repeatedly warned her about failing to do so, and in 2018, she was caught falsifying those records—a fact she openly admitted. Seems like a clear-cut case for termination, right? Not so fast. Before she was fired, her direct supervisor made multiple comments suggesting gender bias. He reportedly said that women shouldn't be managers, that management was too stressful for women, and that women were too sensitive for leadership roles. These remarks continued until just two months before she was fired—two days after her confession. The lower court initially dismissed the case, reasoning that since she admitted to misconduct, the company had a legitimate reason for firing her. But the Second Circuit Court of Appeals disagreed. In discrimination cases, employers often defend terminations by citing legitimate business reasons, like rule violations or poor performance. But under Title VII of the Civil Rights Act, an employer can still be found liable if discrimination was a motivating factor—even if the termination was partly justified. The Second Circuit reaffirmed that an employee does not have to prove that an employer's reason was false (a legal concept called "pretext"). Instead, an employee can win if they show that bias played at least some role in the decision. It's called a mixed-motive analysis. Because the former employee provided testimony that her supervisor made sexist remarks and played a role in her termination, the court ruled that a jury should decide whether her firing was influenced by gender bias. 🔑Key Takeaways for Employers ⚖️Bias Still Matters—Even When Misconduct is Clear: Just because an employee breaks the rules doesn't mean they can't also be a victim of discrimination. If there's evidence that bias influenced the decision, employers could still face legal trouble. 🚤Supervisor Comments Can Sink Your Case: Offhand remarks—especially from decision-makers—can be used as evidence of discrimination. Employers should train managers to avoid making biased comments, even casually. 📝Document Everything—Consistently: Consistency in disciplinary actions is crucial. If similar rule violations by other employees didn't result in termination, it could strengthen a discrimination claim. Proper documentation helps defend against such lawsuits. While no employer wants to navigate a lawsuit like this, it's a reminder that employment decisions are rarely black and white. Taking proactive steps to prevent discrimination can help avoid costly legal battles. #TheEmployerHandbook #employmentlaw #humanresources

❓ Firing/laying off people in Japan? ❓ With the recent news of massive #layoffs from Microsoft, Indeed, Glassdoor and etc. One thing I like about #Japan is the strong labour protection law we have here. I recently met up with one of my old HR and they told me lots about the complications and difficulties of firing or laying off a permanent employee here which I found interesting always! ⭐️ Firing a permanent employee in Japan is generally a difficult process due to a combination of labor laws, court precedents, and cultural norms that strongly favor job security and employee protection. 🔒 1. Strict Labor Laws 🔶 Japan’s Labor Standards Act and decades of legal precedent make it very difficult for companies to unilaterally dismiss regular (permanent) employees without meeting specific, high legal standards. 🔶 Under the "doctrine of abusive dismissal" (解雇権濫用法理), a termination can be ruled invalid if it is: 🔸 Unreasonable, or Not socially acceptable 🔶 Even if there's a legitimate reason (like poor performance), courts often side with the employee unless the employer proves: 🔸 Repeated documentation of issues and efforts to improve 🔸 Fair and transparent process 🔸 No alternative to dismissal (e.g. reassignment) ⚖️ 2. Precedent-Based Legal System Japan’s judicial system relies heavily on precedent. Courts have consistently upheld employee protections, making employers cautious. Wrongful dismissal lawsuits can result in: 🔷 Reinstatement of the employee 🔷 Back payment of missed wages 🔷 Damage to reputation and morale 👥 3. Cultural Expectations of Lifetime Employment The traditional “lifetime employment” model still influences expectations, especially at larger companies. There’s an unspoken social contract: 🔶 Employees show loyalty and long-term commitment 🔶 Companies provide job security and career development 🔶 Breaking this norm, especially without clear justification, is seen as socially and morally problematic. seishain (正社員) - "PERMANENTLY" employee kind of meaning forever employee 🏢 4. Practical Barriers Employees rarely quit easily, especially older ones, due to limited external job mobility. 🔷 Unions (even if weak) can complicate dismissals. 🔷 Companies often resort to indirect methods rather than firing people like: 🔹 “Pasona rooms” (reassignment to meaningless roles), where the employee chose to leave on their own 🔹Voluntary retirement incentives 🔹Reassigning employees to different locations, which they do not want to, so voluntarily leave 💡 Summary ⭕ It’s hard to fire a permanent employee in Japan because the law, courts, and culture emphasize long-term employment stability ⭕ Dismissal is legally risky, socially sensitive, and procedurally demanding ⭕ Most companies opt for negotiated exits or internal transfers instead of direct termination I can kind of see this as a benefit of working in #Japan, which is why many candidates on contract roles, usually will be focusing more on looking for permanent roles.

When will the law allow you to fire your employee without compensation? This is a tricky subject that properly attracts the famous lawyer answer: “It depends.” There are a whole series of twists and turns in the road to firing an employee for just cause (or good legal reason), but this July 2025 decision of the Alberta Court of King’s Bench provides a roadmap: Dell v Brookfield Residential (Alberta) LP, 2025 ABKB 403 (CanLii). In summary, the case involved a 8-year management employee who was fired for participating in a supplier’s incentive program contrary to his employer's code of conduct. The manager was adamant that he had not participated in the program, and even called one of the supplier’s employees to testify that no incentive had ever been paid. However, the employer called the supplier’s owner to testify. The owner explained that, while no incentive had been paid to the fired manager (yet), he was in line for one at the time of the dismissal. The Court ruled that the manager had violated his employer’s code of conduct policy and then failed to take responsibility for his own behaviour. It was found that “just cause” existed for the firing. Here are some takeaways from the case: 1.      Many forms of employee misconduct are not serious enough to justify dismissal with no compensation. However, deceit and lack of trust are more likely to warrant firing. 2.      Dishonesty is often the final “nail in the coffin” for an employee. Their misconduct (in this case, a breach of a code of conduct) is bad, but not being forthright about it is probably worse. 3.      Employers should investigate misconduct before making a decision to fire an employee, and the employee should be honest and forthright in answering the employer’s questions.

In the US, most states acknowledge that employees are employed at will (yes, I see you Montana). And most employers have no idea what that means or how it works. Many think they can fire at-will employees willy-nilly and are protected from wrongful termination claims, because, well, the employee was at will. But that's not true. At-will employment means that the employment exists at the will of the employee and employer. As long as they both want it to exist, as long as they will it to exist, it does. An employer can let an at-will employee go for any reason, a good reason or bad reason or no reason at all, BUT NOT FOR AN UNLAWFUL REASON! To defend against a claim that an employee was let go for a wrongful reason, such as discrimination or retaliation, the company will need to articulate and prove that it had a legitimate business reason for the termination. So there needs to be one that is documented and, when performance-based, would not come as a surprise to the employee. The company can't just say "the employee was at will" and expect the claim to go away. Partner with a management-side employment lawyer who can help you navigate these and other employee situations to protect your company and ensure you are satisfying the company's obligations to its employees. Do that. #employmentlaw #employmentlawyers #lawyers #business #humanresources #DevLInTheDetails