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The Question

I have a problematic employee that has been underperforming and I plan to let him go. But, based on what I know about working with him already, I’m worried about this employee badmouthing our company and posting negative things about us publicly, on social media, for instance. Is there anything I can do during the termination process to prevent this from happening? If he does end up shaming us publicly, what can I do?

The First Answer

Jonquille Pak, partner, Pak Smith Employment Lawyers, Toronto

A former employee defaming your company can be a public-relations nightmare. There are a couple of things you can do to minimize the risk of negative social media posts.

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First, plan and execute a well-thought-out termination process. Ensure that the termination meeting is conducted in a respectful fashion. Even though the employee is underperforming, you may wish to avoid elaborating on the issues that led to the termination decision. This may help lower tensions.

Before you terminate, obtain legal advice regarding the amount of severance (if any) that is appropriate in the circumstances. In most cases, employees are entitled to a severance package, even if underperforming in the job. Offering a reasonable severance package in line with the employee’s legal entitlements reduces the risk that the employee feels disgruntled about the manner of dismissal.

If a severance package is required, consider entering into a formal severance agreement that contains a strict non-disparagement provision. This is a legally binding promise from the employee not to make, post or disseminate disparaging statements about the company. If he or she agrees and signs, you can hold the employee accountable for any breaches.

Should the employee end up publicly badmouthing the company, you have some options. Start by persuading the employee to voluntarily remove the post. A cease-and-desist letter and threat of legal action is an effective strategy to encourage compliance. If that fails, the company may pursue a defamation claim through the courts. The company can be awarded monetary damages and/or a court order requiring the employee to delete the post. Note that these remedies can be pursued whether or not the employee previously agreed to non-disparagement terms.

The Second Answer

Jason Edwards, associate, Pink Larkin, Halifax

The best course of action is almost always a mutually agreeable resolution. You can offer a reasonable financial settlement in exchange for the employee executing a release of liability that includes a “non-disparagement” clause. The employee would contractually agree not to defame the company.

If they will not agree to sign such a release, or if you are terminating their employment for cause and do not need to provide notice or pay in lieu of notice, you could take a more passive approach. Terminate their employment and wait to see if they do defame the company. If they do, you can decide whether it would be prudent to send a “cease and desist” letter and, if they persist, file a civil claim for defamation.

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Another option, if they do make negative public comments, is to ignore them entirely. In my experience, these situations provoke a strong reaction of anger and fear in the former employer. Fortunately for employers, negative public comments by former employees are seldom received well by the public or given serious consideration in the media. Unless the employee has a serious, legitimate grievance, an employee who has had their employment terminated is often viewed as being bitter and acting out on feelings of resentment and rejection.

Reacting to them by trying to “correct the record” tends to lend undeserved credibility to their claims, provoke more comments, and just generally looks bad.

Have a question for our experts? Send an e-mail to NineToFive@globeandmail.com with ‘Nine to Five’ in the subject line. Emails without the correct subject line may not be answered.

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