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Unwanted people: How to Dismiss an Employee

21.11.2006

Any personnel manager knows that nowadays it is very difficult to find a highly qualified employee, leave alone to keep him. It sounds paradoxical but the fact is – to fire an unwanted employee is even more difficult. Moreover, it is next to impossible to fire an employee if he is determined to stay. Alexander Koposov, a lawyer of the law office „INLAT PLUS” tells us what can be done in the situation when an employee is reluctant to quit by his own free will.

„FIRE ME IF YOU CAN!”

When new shareholders came to the company Y the first thing they did was appointing their insider as a new director of the company. However, the former director Mr. Arnold was not so easy to give in. He repeatedly refused to quit voluntarily. At the same time he did not sign any excessive documents and he was always on time at work. At 10 a.m. sharp, according to the labor order, he entered his study and at 6 p.m. sharp (not a single minute earlier!) he left it. He was as if teasing everyone: ”Just try to fire me!”

IMPROPER DISMISSAL: LOSSES EQUAL TO SEVERAL THOUSAND LATS

Lawyer`s comment:

"In a sense Labor Law puts employee and employer in an unequal situation. Employee is entitled to terminate labor relationship at any time with a month`s notice. Whereas employer is entitled to terminate labor relationship only due to certain reasons stipulated in the legislation observing a certain order.

If something goes slightly wrong the offended employee files a case of illegal dismissal. And if the employer cannot prove that the dismissal was performed properly the employee will be reponed in his former job, moreover – the company will have to pay him compensation for the period of forced absence from work.

It is well known that Latvian courts are overburdened and trials drag on for years. And although an employee`s official salary usually does not exceed a state minimum wage, the sum of the damages can amount to several thousand lats. Beyond that, when the trial is over something must be done about that reponed employee after all! It is obvious that normal contact with that employee can never be restored again, so it means that the employer will have to try to find a compromise decision, i.e. to ensure somehow that the employee would submit a letter of resignation by his own free will. And it means expenses, expenses, expenses…

In a word, just one wrong step – and a company not only faces considerable expenses and involves itself into a long troublesome trial but also (which is the most annoying thing!) does not resolve the main problem: the unwanted employee still remains oficially in the staff.

A SICK-LIST FOR A BOX OF CHOCOLATE

There are several popular clauses of Labor Law of dismissal of an employee but as we can see none of them guarantees a positive result. Let`s imagine that your employee maliciously violates labor discipline: he turns up at midday, looks through his e-mail, drinks coffee and leaves in an hour or so. Or even worse: he just disappears without saying a word and cannot be reached on the phone or in any other way for several weeks.

If you fire him for voluntary absence from work, the employee brings a case against you and demonstrates a sick-list in the court: as it turns out he was ill and not maliciously absent from work.

Alexander Koposov points out: “Nowadays everybody is sly. Even if a perfect dismissal is in your mind you can never be sure that the employee would not arrange a sick-list post factum – just by giving a box of chocolate or five lats to the doctor. And the employee will not sumbit the sick-list to you – he will go straight to the court and demonstrate it there. The thing is you cannot fire an employee if he is in the state of temporary disability – it is illegal!"

The problem is, it is next to impossible to uncover “conspiracy” and to prove that the employee has simulated illness or that the sick-list was issued owing to his good connections. Well, theoretically it could be possible, say, to interrogate the doctor, find some witnesses or even call the police but it is very unlikely that an employer would deal with this.

IF AN EMPLOYEE REFUSES TO SIGN: READING OUT LOUD

If you would like to fire an employee according to the clause of Labor Law “failure to perform labor duties” it will be quite a procedure. First of all, you should demand a written explanation from the employee himself. The thing is he can refuse to provide a written explanation!

Then, in order to be able to prove in the court (if the matter goes to the court) that you have strictly obeyed the order of dismissal stipulated in the law you must prepare a written order as follows: “Mr. X is required to submit an explanatory letter about the fact he has not been at work for already a whole month.”

Then the above-mentioned order should be immediately given to Mr. X for signing. If the latter appears at work though...

Let`s assume that Mr. X did appear at work. Still, he refuses to sign the order. Well, in that case we have two options. Option A: we send Mr. X the above-mentioned order by registered mail to the address specified in the labor agreement. Option B: we create a commission of official investigation which can consist of three people. In their presence the order will be read to Mr. X out loud (loudly and unambiguously!). Then a special act will be drafted stating that the order was brought to the attention of Mr. X who refused to sign it.

In a word, if your employee categorically refuses to sign documents you can fight with that, still it is as complicated as trying to prove that his sick-list is false. Special commissions should be created, acts should be drafted, letters should be sent by registered mail. Once again, it is most unlikely that any employer would deal with that.

It is next to impossible to get rid of an employee according to other clauses of the Labor Law. E.g., “dismissal due to the staff redundancy” nowadays is applied only literally: if the company really shuts down some of its branches and is forced to fire its employees.

As to the clause “loss of trust”, it is impossible to apply at all. The thing is you should be ready to explain to the judge and to prove it with different documents that you used to trust this certain employee and now you do not trust him – and you should be able to explain why.

“Cannot cope with his professional duties” – it is also a controversial issue. It is very difficult to prove that an employee cannot cope. One thing is when he does not have a a Latvian knowledge certificate or a diploma certifying higher education which is necessary at his particular job according to the Job Classification – that could be a reason for a dismissal. However if an employee has all the necessary diplomas and certificates and still cannot cope with his duties – what can be done about it?!

SOLUTION: HE WILL QUIT HIMSELF

One of the most effective ways of dismissing Mr. Arnold would be to ensure such working conditions for him that he would quit himself. In order to achieve that the management of the company Y should gradually transfer Mr. Arnold to lower positions – by means of reorganizing the structure of the company. Lower positions would mean a smaller scope of duties and, accordingly – a lower salary, down to the minimal salary, without any bonuses, of course. Sooner or later he will be forced to quit!

Translation of the article dated September 2006 by Karina Kaca
/ Oksana Migunova, Бизнес.LV /