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Termination notice

Tuesday, 16 August 2011 09:45am

©The Star (Used by permission)
Articles of Law By Bhag Singh

Employers should watch out for defamation when publishing a termination notice involving a worker.

EMPLOYEES are always entitled to terminate their employment as contractually agreed. Employers, however, are rather restricted in that an employer can only do so without any consequences if there is justification for the termination. Be that as it may, there are occasions when an employer brings an employment to an end.

In the past, there was a distinction between contractual termination and dismissal. The later implied a shortcoming or misconduct on the part of the employee. Today, this distinction is of little or no significance because an employer can only terminate if there is just cause.

Related to this issue is the publication of a termination notice in a newspaper by an employer. This can be embarrassing to the former employee whatever the circumstances. A reader asks whether an employee is entitled to take action for the embarrassment caused?

To be able to successfully take legal action for such a notice, there must be a sustainable cause of action. In this scenario, the cause of action that best comes to mind is defamation.

If the notice is defamatory, then action could be brought. In this context, it must be appreciated that whilst every defamatory statements is likely to cause embarrassment or even more, not all cases of a person being embarrassed would constitute defamation. So the question is whether the notice is defamatory.

Of course, the two opposing parties involved will view such a notice differently. The employer may take the view that he is merely letting the public know that a certain person who was working for him before is no longer so employed. What is wrong with that?

Derogatory

On the other hand, the employee may feel embarrassed because people, including his acquaintances and friends, will know that he is no longer employed. This by itself may not be derogatory. But the employee may question the need for a public announcement of a situation arising out of a contractual relationship.

Whilst both viewpoints are not totally untenable, the essence of the matter is the content of such a notice. In addition, the format and presentation of the notice will have further implications as to what message is conveyed.

At first sight, an announcement that a person has ceased to be the employee of a particular employer would appear to be harmless. This is because a simple and accurate notice would merely state the basic fact.

Some employers may not be content with just stating the bare fact of termination and may use words such as that the employer “will not be held responsible nor liable for any liabilities and/or losses and/or damages caused by the misdemeanour and/or conduct and/or improper/illegal acts(s) so committed” with reference to the employee referred to.

Where such words are used or for that matter even stating the fact of termination, the former employee may well take the use of these words alone or in combination with other words to send the message that there are adverse reasons suggesting misconduct and wrongdoing for the employment being terminated. To what extent can the employer go in making the announcement?

Any employee who attends to his work diligently and does not engage in any wrongdoing or misconduct will seldom have the employment terminated. Therefore any termination notice, apart from specific situations, does not usually send a good message.

Even when an employer does so, there are two situations that need to be considered. One is where the employer can prove the misconduct or wrongdoing. The other is where he suspects and believes that there is misconduct and wrongdoing but cannot prove it with cogent evidence.

In either case, the employer is not likely to retain the employee.

Opposing views

If the former be the case, then the employer is safe even if the notice conveys defamatory imputations because he will be able to justify the imputations conveyed.

However, in the later situation, the employer will be on shaky or dangerous ground. This is because when publishing such a notice, mere suspicion or honest believe is not enough. Thus the employer could end up being liable.

If an employee is suspected of being dishonest or incompetent, would it not be in the public interest for this to be made known? This will protect other employers who may be ignorant of the realities and take on such employee with unwanted consequences.

Of course, the law does recognise public interest with regard to exchange of information about employees who are incompetent or dishonest or involved in undesirable activities. Such employees do not only cause harm to a subsequent employer but also indirectly to society.

However, the difference lies in the manner in which this is to be done. The law gives protection to employers who exchange information about employees. This is of mutual interest.

Before taking on a new employee, an employer is entitled to inquire about the applicant from the former employer. Any adverse statements made by the previous employer will be protected.

This right of the former employer to convey adverse information about the former employee to the new employer exists even if the new employer has not asked for the information and it is volunteered by the former employer.

This protection against defamation in favour of a former employer, exists by virtue of the defence of qualified privilege. This defence protects honest communication between parties which have a mutual interest.

The law considers public interest better served in this way because a general notice to the general public conveys the matter complained against to people who do not have any interest in receiving such communication. Thus the medium through which such information is communicated makes a difference.

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