Do you remember the “Friends” episode where Monica, a chef, brings home dinner for all of her friends – five steaks and an eggplant for Phoebe – which she received from a new meat supplier at work? Her boss calls her the next day to say that the food was a kickback and terminates her immediately for violating corporate policy. (Don’t worry, I’d forgotten about the episode too until I started writing this).
Would it have taken the scriptwriters a long time to rewrite the scenario and figure out how to terminate Monica in countries outside the US? Sadly, the answer is yes. Employers face many potential pitfalls when terminating non-US employees for cause. Here are some of the top issues that employers encounter that are surprising from a US law, at-will employment perspective.
As Monica once said: “Welcome to the real world. … You’re gonna love it!”
1. Ground of Terminations
a) In many countries having grounds for an immediate termination for cause is a very hard standard to meet.
If Monica had received some borscht as a kickback in a Moscow restaurant, for instance, the restaurant might not be able to use the for-cause termination route. In Russia termination for cause for a single act of gross misconduct is restricted to an exhaustive list of grounds including the employee coming to work intoxicated, embezzlement, or willful destruction or damage to property as determined by a court ruling (meaning that the company would have to sue the employee in court and obtain a judgment against the employee). Unless one of the enumerated causes is given, the employer can dismiss an employee only if there is repeated failure by the employee to perform his or her employment duties without good cause, but this requires prior discipline against the employee for the violation. Thus, under this prong, even after Monica got caught taking the kickback in violation of the corporate policy, her boss could not terminate her if it was her first misconduct.
In practice, employers in Russia often prefer to mutually terminate an employment relationship to avoid contentious proceedings and to minimize disruption, even where there are serious concerns with respect to an employee’s behavior (though in fairness, this does sound like California).
“I know!” [with Monica’s excited tone]
b) The termination grounds often need to be set forth in company policies properly rolled out.
If Monica was working in China and violated a global company policy that was not rolled out through a “democratic process” (basically, a process of obtaining the opinion of the employees’ and/or their representatives) the restaurant would not be able to use the “for cause” route for a termination based on violation of the company policy.
Instead, the restaurant would probably need to convince Monica to resign or accept mutual separation.
In some countries there is a very strict timeline for the termination process.
What if Monica worked in a beer garden in Germany? The German beer garden would need to serve Monica with a termination letter within two weeks after learning the relevant facts constituting the severe breach of contract. The two week period is triggered once the employer has collected sufficient facts to come to an educated decision on whether or not the relationship with the employee is irrevocably disrupted and a dismissal is the only option available. If the employer misses this deadline, the dismissal without notice for cause is void but may be construed as a regular termination with notice from 4 weeks up to 7 months (after 20 years of employment), which, though, in turn can be challenged.
We do not have enough background to know how Monica’s boss found out about her alleged misconduct (clearly they did not have an employment lawyer in the writing room). But we know for sure that Monica did not have a chance to explain herself during the investigation.
In many non-US countries employers must investigate the allegations of misconduct in accordance with specific procedures or at least follow such procedures as they want to impose discipline.
In a Bollywood script Monica should have received a charge sheet that should clearly set out the alleged misconduct, specific sections of the company policy violated by the particular misconduct, and the time within which the employee is required to provide a response to the charge sheet. In India, Monica would have three to four working days from the date of receipt of the charge sheet to assess and respond to the charges. The next step is usually to appoint an enquiry officer or constitute an enquiry committee and send a notice to the employee setting out the date and time of the enquiry/disciplinary hearing. During the hearing all evidence should be produced and the employee should be given an opportunity to provide explanations and to cross-examine the witnesses. After the hearing, the enquiry officer should submit a report with the findings to the disciplinary authority in the company (normally management). The whole process would probably not fit into one 25-minute episode (although the usual workaround in India is to shame Monica sufficiently for her to resign).
In many non-US countries employers must comply with specific formalities and jump through many hoops in order to terminate an employee for cause.
a) In South Korea termination notice in an e-mail is not sufficient. The termination notice must be in writing wet-ink signed by duly authorized officer of the employing entity and should specify the reasons for termination. Unfortunately, receiving a letter several days later is not nearly dramatic enough for the US attention span, but that still pales in comparison to what is required in Belgium, where the termination notice would have to be delivered by registered mail, issued by the Belgium post, and of course in the “right” language based on Belgium language legislation (though sadly a bad British accent is not a requirement).
b) In some countries companies need to comply with several follow up steps after the termination:
- In Japan the employer should, inter alia, notify local authorities that the employee lost a qualification as insured person.
- In Hong Kong the employer should, inter alia, notify Mandatory Provident Fund trustee and the Inland Revenue Department of Hong Kong of the employee’s termination.
And as we all know, nothing spells comedy gold like notifying the government’s revenue department, so all things considered it’s probably a good thing Friends was based in New York.