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Handling Employee Termination Gracefully in Your Salon or Spa
61 Plays1 year ago
In the beauty business, parting ways with a team member is tough but sometimes necessary. It's not just about saying goodbye; it's about knowing the hows and whys so you can do it the right way.
Getting the Basics Right
Ending a job is never easy, whether it’s a decision from you (termination) or them (resignation). Chris Drinovz, a pro in employment law, sheds light on this delicate process.
The Early Days Matter: The Probation Period
Newbies have a trial period. If things aren't clicking, you can part ways easily in these early days, especially in the first three months. Just remember, the rules change once this period is over.
Full-time or Part-time: Same Rules Apply
Whether your team member is full-time or part-time, the game's the same when it comes to ending their contract. It's all about their average earnings when figuring out their dues.
Understanding ‘Cause’ and ‘No Cause’
There are two ways to say goodbye: 'with cause' (like serious issues on their part) and 'without cause'. Going the 'with cause' route doesn't need notice or severance, but you've got to have your facts straight.
Steering Clear of Legal Bumps
As a salon/spa owner, watch out for legal traps. Mistakes like not giving enough notice or being unfair can lead to big headaches.
Smart Moves for Salon Owners
- Be picky when hiring.
- Use clear contracts.
- Keep records and follow steps before letting someone go.
Privacy is Key
After saying goodbye, keep it classy. Their story isn’t for sharing with the team or clients.
Wrapping Up
Letting someone go is hard, but knowing the ins and outs makes it smoother. Stay informed, stay fair, and keep your salon or spa a great place to work and visit.
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Transcript
Handling Staff Termination in Salons
00:00:00
Speaker
Are you a salon or spa owner who wants to handle the delicate job of terminating a staff member properly? Do you work in a salon and wonder what your rights are when it comes to being terminated? Or are you wondering how to set yourself up to avoid the problems in the first place?
00:00:24
Speaker
Hey beauty and barber pros, welcome to the Business of Style podcast, brought to you by the beauty council. My name is Greg Robbins and today we chat with Chris Tranovs, a partner at KSW lawyers, a proud beauty council benefit provider. Chris is also the founder and leader of the employment and labor group. Let's transition over to our conversation now.
00:00:46
Speaker
Hey Chris, it is really great to have you join us on the podcast. Thanks so much for joining us. Tell us a little bit about who you are and what you do.
Introduction to Employment Law with Chris Tranovs
00:00:55
Speaker
Thanks, Greg. Yeah, it's great to be here. My name's Chris Drinoves. I'm an employment and labor lawyer, and I spend most of my time advising businesses regarding employment matters, labor matters, human rights matters. Pretty much anything to do with the workplace is the stuff that comes across my desk. So I'm a partner at the law firm, KSW Lawyers, and we have four offices throughout the lower mainland. Great. So you're very familiar with small and medium businesses here in British Columbia. Is that fair to say?
00:01:23
Speaker
Absolutely. The main, I'd say the main client of mine is kind of that, that small to mid-sized business. So definitely dealing with businesses on a daily basis. Perfect. Great. So today we're going to talk about a pretty sensitive topic. And the reason we want to cover this is because many of our members have challenges or at least have questions around how to terminate or fire people. So let's just define that first of all, what is termination exactly? And how might it be different than let's say somebody quitting or resigning.
00:01:52
Speaker
Yeah, so with the resignation, that is where the employee is the one initiating the step that brings the employment contract to an end. With the termination, it's the employer that is taking the step to end the relationship. So that's effectively what defines a termination, where the company is the one taking the step to end the employee's employment. Got it. And that's the same as being fired, right? Termination and fired can be used interchangeably. I guess termination is a little more proper or technical.
00:02:21
Speaker
Yeah, I would say being fired may have a connotation of there was misconduct or something, but ultimately termination and firing is describing the same thing. Yeah, that's a really good point.
Termination Procedures and Employee Rights
00:02:32
Speaker
So when can staff be terminated? Maybe we could just touch on a little bit around some of the aspects of termination as it relates maybe to the probation period versus a non-probation period. You could just outline that for us for a new employee.
00:02:48
Speaker
Yeah, absolutely. So if you have a probationary period built into your employment contract, so if you have a written contract setting out a probation period, you can terminate the employee during that period for reasons of what we call unsuitability. So if the employee is just simply not a good fit, you know, you've given them a reasonable chance to do the job and it's just not working out, you can determine that they're not suitable
00:03:13
Speaker
for employment within the probationary period. And if it's within first three months of employment, then under the BC Employment Standards Act, you don't have any obligation to give them notice or pay. So you could do that termination within the probation and not face any liability with BC employment standards. Oh, that's really good to know. So three months or 90 days is kind of the standard as defined by the province. Now you mentioned something about a written agreement. Can it be longer than that if it's written in an agreement?
00:03:41
Speaker
Yes, it can. So if you have a written employment contract, you can specify a probationary period that's longer than the three months. So I've seen, you know, six months before going up past six months is probably more than you would typically see, but it is done in certain special cases. And if you have extended the probation out by agreement, then that same criteria of suitability applies to give you kind of that lower standard to terminate someone during the probation period.
00:04:09
Speaker
The wrinkle to this, though, Greg, is if the person is terminated after three months, still within their probationary period, you still need to provide the minimum notice or pay required by the Employment Standards Act. So after three months, that notice or pay becomes one week. So it gets a little tricky there. And if you're in a situation like that, getting advice is something that you might want to do. Yeah, anything between three months and a year, you'd have to give that one week of notice or pay regardless of the reason.
00:04:38
Speaker
Okay, that's really good to know. So if it's after 90 days or three months, be prepared to pay the one week out and then go from there. Now, is there a difference between terminating full-time employees or part-time employees? We get that question often. Not really. The way the Employment Standards Act works is you have to give the minimum notice or pay regardless of whether the employee is part-time or full-time.
00:05:00
Speaker
Now, the amount of compensation that you would pay if you do without notice is based on the employee's average wages. And so for a part-time employee, the payout amount may be less because their average wages are going to be lower. But the distinction of part and full-time wouldn't make any difference as far as the obligations on the employer when it comes to termination. Got it.
00:05:23
Speaker
Okay, so let's say everything is good, 90 days goes by, people are happy, but after maybe a year or two, things are in a position for the business where termination has to happen for an employee.
Termination for Cause vs. Without Cause
00:05:36
Speaker
What is the difference between cause and without cause? This is another big question that comes up for us.
00:05:43
Speaker
Yeah, that's a great question. So a termination with CAUSE is a termination that's based on employee misconduct or employee not meeting performance standards. Typically, in a termination without CAUSE, the employee has created some reason for the employer to terminate them based on their own conduct.
00:06:05
Speaker
And if a termination for cause can be upheld, then the employer doesn't actually have to give any notice pay or severance pay. So for that reason, it's a very high threshold to be able to justify a for cause termination. Things like, you know, dishonesty, theft, fraud.
00:06:24
Speaker
Those type of things are quite common for termination with cause, but more minor infractions or small mistakes typically wouldn't meet that high threshold unless you've got really a pattern of those things happening and a program of progressive discipline and all of that leading up to a final warning and then continued.
00:06:44
Speaker
reach and then you can consider doing termination for cause. So the termination for cause is definitely, it's a high threshold. It can only be used in very serious circumstances. And if you haven't met that, then you definitely want to go the without cause route, which is by providing proper amount of notice or pay. I would imagine that to prove cause there's a bit of a process to go through. You can't just sort of say, well, we didn't like the way you performed or you haven't really been that great over the last three months, you're out of here.
00:07:12
Speaker
There's got to be some burden on the employer to demonstrate a lack of fit, right?
00:07:19
Speaker
That's right. That's right. Yeah. It's, it's definitely something you have to prove through documentation. So did you have a meeting with the employee? Did you give them a written warning? Did the warning specify a reasonable standard that you needed them to meet? Did you give them the chance to meet the standard? You know, did you give them a second warning? You've got to really show that paper trail going back to that concept of progressive discipline to be able to justify that you were, that you had a right to terminate for just cause.
00:07:45
Speaker
Sounds like a good opportunity for individuals to have their ducks in a row on that one. I would imagine that's for sure. And speaking of which, so what are some of the areas where let's say a salon owner or spa owner may break any rules or leave themselves exposed to legal action when they undertake a termination?
00:08:03
Speaker
Yeah, so a couple things. One kind of misconception out there is that as long as you follow the Employment Standards Act, you're not going to be in any trouble. And unfortunately, there's another concept out there called the common law, which says that in the absence of a written agreement, you have to give not only the employment standards minimum, but a period of reasonable notice if you're going to terminate someone or give them pay in lieu of that reasonable notice. And the only way you can get out of that obligation
00:08:31
Speaker
is if you have an enforceable written contract that says that notice period is actually just going to be the minimum required by the Employment Standards Act and the courts are very strict in the way that they scrutinize those agreements. That's an area where I see a lot of employers getting into trouble is thinking, well I gave the employment standards amount so therefore I'm fine. Not the case if you don't have a good written agreement and that's an area where
00:08:55
Speaker
definitely seeking professional advice is helpful. Another big one I see, Greg, is if the reason for the termination is discriminatory in any way. If the termination is based on the fact that someone has had a health issue, based on someone's age, based on any of the 16 protected characteristics under the BC Human Rights Code, that could be
00:09:17
Speaker
considered discriminatory and a breach of the BC Human Rights and could result in a human rights complaint. So that's kind of a second area where I see a number of employers getting into trouble. And then the third one, which is a little bit more recent, is if the termination is a retaliation in any way for someone raising a health and safety issue.
00:09:36
Speaker
So if someone has made a complaint about bullying and harassment, if someone has brought to your attention a health and safety issue in the workplace, and then the next thing you do is turn around and fire them, they could go to WorkSafeBC and say, that was retaliation for me exercising my health and safety rights and WorkSafe could get involved and you could have another complaint on your hands.
Legal Risks in Retaliation Terminations
00:09:58
Speaker
Interesting. Yeah. I would imagine that people might be nervous to bring these concerns forward, but they could really endanger not only the staff, but clients as well. So it's good to know that that is an avenue for people to make those complaints or raise those concerns and be somewhat protected. What are some of the best practices owners should adopt to protect themselves? So what can they do on a day-to-day basis and as they run their operations to really insulate themselves from any of these
00:10:28
Speaker
danger zones that they could find themselves in.
00:10:31
Speaker
You know, the first step always starts at the hiring stage. We do a seminar called the art of hiring, where we go through all of the kind of due diligence that you want to do when you're looking to hire someone. And of course, these days it's very difficult to find and keep workers. So sometimes you're just working with whoever you can get, but taking steps to really check those references, to really do a thorough interview, to make sure that you're getting the person that you think you're getting. That could prevent you from having to do a firing three months in or, you know, six months down the road.
00:11:00
Speaker
Another good one is of course, as I mentioned, the written employment contract. So having a solid enforceable termination clause gives you the option to terminate an employee that you don't want for relatively low cost and without having to go through that difficult process of proving just cause. If you only have to give them a week's notice or a week's pay, that's a lot easier than having to get a lawyer, having to do months of discipline and progressive steps and all that.
00:11:25
Speaker
So having that enforceable employment contract is key. And then just your HR practices as you're managing the employment relationship, documenting everything, making sure that if there is a meeting that you follow it up with an email, setting out these were the points, these were the points of improvement, and making sure you have everything really well documented and if there is progressive discipline that it's done in a reasonable way.
Protecting Employee Privacy After Termination
00:11:48
Speaker
Yeah, really great points. You know, one area that we do come across every once in a while or we hear about is that after termination, the staff are wondering what happened to that individual. And it could be that management then starts revealing the interaction between the person that was terminated and themselves. So what sort of cautions would you offer owners who are willing to, let's say, spill the beans on on why somebody was terminated?
00:12:15
Speaker
Yeah, that's definitely a potential issue. So under the Personal Information Protection Act, all employees have a right to privacy and to have their personal and private information be protected and the confidentiality of that information guarded by the employer.
00:12:32
Speaker
So best practices, if you do terminate someone, you can advise the team and customers and other stakeholders that the individual is no longer with the organization, but you shouldn't go beyond that. You shouldn't get into the fact that they were terminated for cause. You shouldn't get into reasons why they were terminated. You shouldn't get into any of the discussions you had with them about performance or anything like that. It's a breach of their privacy. It could cause additional problems if they're already
00:12:59
Speaker
going to be filing a legal complaint. It's just not good for morale if employees know that the employer doesn't respect the personal information of their coworkers.
00:13:10
Speaker
really good reminder about the sensitivity of personal information. And I guess along those lines, the employment agreement you have with each individual is indeed a one-to-one contract,
Individual Employment Contracts and Legal Advice
00:13:22
Speaker
right? So it's not like you can just walk around and say, well, so-and-so signed this same document as well, or theirs is a little bit different, yours is going to be this way, theirs is that.
00:13:30
Speaker
Yeah, each individual employment contract is unique and is treated as a separate legal relationship. And so it doesn't matter if employee A, B have one thing and employee C has another. The rights of employee C are not impacted by
00:13:47
Speaker
the other two contracts. Employees' rights only have to do with the individual terms and conditions that they've negotiated with the employer and trying to make reference to other employees' agreements is not going to help the individual. They just have to look at their particular agreement they have. Great, great reminder about that. So just to wrap up, what kind of lawyers such as yourself offer to help protect salon owners in advance?
00:14:10
Speaker
A lot of what I do is kind of preventative type of work. So I can provide templates for employment agreements, for hiring checklists, for reference check forms, all of that kind of stuff. I can help employers have in place to make the hiring process smooth, to make sure that they're doing all their due diligence at the outset of the relationship and kind of screening out any potential problem employees. And then
00:14:35
Speaker
making sure they have that enforceable written agreement that is not too offensive to an employee that maybe you want to attract or induce from somewhere else, but also at the same time protects you and ensures that you have those options if you do decide that you want to let the employee go. So I do a lot of drafting of documents and preparation of workplace policies and employee manuals and that kind of stuff.
00:15:01
Speaker
And then if you are in a situation where you need to let someone go, but you think something's a little strange about it, they've recently been on medical leave or you're currently accommodating them because of a family caregiving issue, those can be really sticky situations and they could result in big liability if you get it wrong.
00:15:20
Speaker
So reaching out to a lawyer such as myself before you do a termination or before you do a discipline or a demotion or relocation, just making sure that you're not going offside the Human Rights Code or the WorkSafeBC regulations. Having that conversation before rather than after could save you hundreds if not thousands of dollars down the road.
00:15:41
Speaker
You know, it sounds like a bit of a no brainer in terms of an investment. Do it upfront. It's kind of like preventative medicine and avoid problems down the road. That's exactly right. Chris, I want to thank you so much for joining us today. You are a fountain of professional knowledge. We really enjoy working with you. And thanks so much for joining us. My pleasure, Greg. Thanks so much.
00:16:01
Speaker
Hey there, it's Greg with a quick message from all of us at the Beauty Council.
Beauty Council's Offers for Salons and Spas
00:16:05
Speaker
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