Does the Employer Have to Give a Reason for Dismissal?

Several months ago a strike broke out in France due to a law that would allow employees to fire workers during their first two years of employment without offering any explanation.
In Israel, too, the law permits dismissing an employee without giving a reason, although at many organizations it's difficult or even impossible to do so because of the company management's dread of the unions, because of signed agreements requiring them to provide "an explanation," or because of an obligation to obtain the union's consent before carrying out a dismissal.

Have the employees been left unprotected, or does their protection not extend to the requirement to provide an explanation before firing those who are not sheltered under the wings of a collective agreement and those who have only the law standing between them and the employer trying to fire them?
Although to a certain extent the law does touch on this issue, providing employees protection against unfair dismissal (e.g. efforts to fire an employee who rejected her manager's advances), but under normal circumstances there's no obligation to provide a reason for dismissal.

Shuki Stauber spoke with Dr. Motti Neuman, head of the Career Counseling Department at Pilat, about firing workers and about the need to offer an explanation for the dismissal.

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Dr. Motti Neuman, who accompanies organizations in the process of worker layoffs and helps dismissed workers find new jobs, draws a distinction between collective layoffs and individual firings. Layoffs are generally based on system-wide considerations, such as financial motives, whereas individual firings are based on one of two primary reasons: a decline in the employee's ability to function and/or disciplinary problems, i.e. violations of behavioral standards at the organization.

 

Shuki Stauber: Services like yours are provided only in cases of collective layoffs. Are you ever asked to provide assistance and consulting in the case of individual firings?
Motti Neuman: That's rare, though there are cases of dismissals resulting from systematic sensitivity. It generally happens in the case of a veteran employee at the organization or the kind who sits at a point where the move conveys a message that others also should heed. Sometimes firing a single person is a signal from management.

Are organizations aware of the need to obtain consulting services to properly manage this type of layoff?
It depends on the organization and on the person in charge of the discharge process. For instance, I remember a case in which a well-known company called me in urgently for a fateful, tense meeting. I thought they were going to shut down the company. It turned out they had to dismiss one person, but the kind of person who had been with the company since its founding and had ties with the CEO's office. He was setting a bad example for others. It was important to get him out of the company and it was important to properly construct the move and the message surrounding it in order to avoid undermining morale.

How trigger-happy are organizations?
A distinction must be drawn between a humane organization that takes drastic measures only when there's no alternative and a hard-hitting organization. A humane organization takes preliminary measures before it decides to fire an employee. In the first stage, upon identifying the problem, the employee is given a suggestion to rectify the problem through assistance, guidance or training. If that doesn't help they move on to the next stage – changing the working environment.

He's transferred to another unit.
Yes. That's a real change. He has a new supervisor or function, or different customers. They give it a chance to work, since sometimes a change of pace or a change of scenery can make a big difference. Changing the work environment is a drastic step that sends the person a real signal that something's not right. At times there's no choice other than to take this step because some people who are unaltered by guidance and training. They fail to sense the severity of the problem. In these cases only an internal transfer will shake them. Only if that doesn't work either are dismissal proceedings introduced.

To what extent to organizations actually take this series of steps?
It depends on the atmosphere and tradition at the company. Obviously it also depends on what's written in the job agreements. In many agreements the organization is obligated to follow this procedure of building a file that will justify firing the worker. If the organization follows a different course, taking shortcuts, a labor dispute is liable to break out.

Regarding your question of what happens in practice, I don't think there are statistics on the matter, but it seems to me that it depends on the state of the market. If there's demand for workers, the organization is less inclined to fire workers, but in an employers' market they're more trigger-happy, because handling an employee with a problem takes away from their management resources. In a case where it's relatively easy to find a new employee it's not worthwhile for the organization to invest in the problematic employee. 

And if the organization has a good human resources manager who understands that bringing in a new worker is an expensive process, both from a financial standpoint and in terms of the message that makes its way through the ranks, then there's a better chance such an organization will be inclined to carry out the process in steps.

Today you have to give the employee a hearing before reaching a decision to dismiss him.
He has to be given a chance to say his peace. But he doesn't have to be given reasons for the dismissal. I have no problem with that. I think the employee doesn't have to be told much. Holding a hearing is the main element in maintaining the fundamentals of justice. Sometimes at the hearing arguments are presented that point to irrelevant reasons behind the discharge. For instance, the girlfriend of the employee who stands to lose his job used to be the girlfriend of his team leader who wants to get back at him. The person doing the firing has to see whether there are real grounds for the dismissal.

But why isn't it necessary to provide a full explanation? Let me give you an example of an argument that does justify providing full details for the reason behind the discharge:
The job occupied a significant part of the employee's life. It's supposed to provide his livelihood, status and other important components that make up his life. An employer cannot ignore that. From the moment he undertook to employ the worker he has a moral obligation toward him. You can't just send him off just like that. There has to be a reasonable explanation for the dismissal and that explanation has to be provided to the employee, if only out of respect, so he doesn't feel cast off. Also, you cannot overlook the fact that the distress over the dismissal generally causes the employee significant harm. Doesn't he at least deserve an explanation for why this is happening to him?
And another thing – when the organization presents the reasons for the discharge, one of the major reasons may be an argument the employee can refute.
Certainly you have to call in the employee and not just fire him out of the blue. Usually the decision doesn't come as a complete surprise, but is mulled over for a while. Still, the person getting fired could receive a pink slip unexpectedly because he didn't get the hint, or didn't take them seriously. For instance, he's asked to stop dealing coarsely with certain people. When the worker is unfazed by these requests and keeps acting the same way, little by little his superiors form their decision to fire him.
Once I sat down with people who had been fired unexpectedly and asked them whether they had been given any hints of what was coming or whether they saw no indications of any weakening in their standing. In many instances they said come to think of it there were hints, but at the time they hadn't paid any attention to them. An example of such hints: they stop getting summoned to meetings or were taken off distribution lists.
[At the end of this article is a list of signs prepared by Dr. Neuman that are worth noting.]

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What about collective layoffs, which are generally done for financial reasons as part of streamlining efforts? When it's decided which workers are going to get laid off, do you have to explain why they were the ones chosen to leave?
Generally the employer doesn't explain and can't explain. They tell the people who get laid off that they assessed the situation and made their decision based on the organization's interests.
As a rule the person laid off knows he's on his way out because he's less qualified. This might be for any of a variety of reasons. For instance, the factory has to keep four of the 30 welders who worked there. They leave the four who live closest to the factory, in order to save money on travel expenses. But they don't give the reason in a concrete manner. They just issue a blanket statement that they're reducing costs. What matters is that they don't blame the person getting fired when he's part of a collective layoff.

Do you get the sense that today companies tend to carry out dismissals in a more humane way?
I used to have people ask me what out-placement is [out-placement is assistance in finding alternative placements for dismissed employees]. Today I'm asked why they should receive these services from me and not someone else. This shows there are other entities providing this service [Neuman was a pioneer in providing this service to organizations], so now apparently there's demand for this service.

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The following are 25 signs of the possibility of an impending dismissal. They relate to the company's general conduct, the position of the job in question at the company or the status of the employee himself at the company. (The text was provided by Dr. Motti Neuman and underwent slight alterations. –S. Stauber)

Signs related to the entire organization:
1. Is the organization where you work merging with another company?
2. Are their rumors/reports of privatization or a change in ownership?
3. Is the company undergoing reorganization, a process that includes redesign or structural changes?
4. Is the organization conducting a comprehensive survey?

Signs related to the job:
5. Has an organizational assessment focusing on you and your job been conducted?
6. Do you occupy a post that many people like you occupied previously and the number of employees is currently in decline?
7. Are more and more contracted workers/personnel companies operating in your job/profession at the organization?

Signs related to the individual:
8. Do you have seniority over most of the people working in similar positions?
9. Have other workers with the same rank and workers who were subordinate to you been promoted while you remained in the same position?
10. Are some of your colleagues at odds with you or ignoring you?
11. Is your direct supervisor at odds with you or ignoring you?
12. During the past 2-3 years have you been overlooked for promotion and/or a bonus while others have received them?
13. Do you take a lot of sick days?
14. Is your opinion on central matters ignored?
15. Are your suggestions not receiving due consideration?
16. Is your manager short-tempered with you?
17. Have you recently been transferred to a different unit where your new boss "keeps you on a short leash?"
18. Do you have a feeling that your supervisors don't respect you?
19. Have others been sent to training courses during the past two years while you haven't been sent?
20. Have disciplinary measures been taken against you during the past two years?
21. Has the amount of work assigned to you been reduced or are you no longer receiving new assignments?
22. Have you been at the same job for over ten years without any real change?
23. Has the administration forgotten to summon you to a meeting on more than one occasion in the recent past?
24. Has the administration forgotten to include your name on internal documents on more than one occasion in the recent past?
25. Have you been listed in the bottom tenth or among the low-level producers in the organization's assessment?

 

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