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The firing line: Don’t make a rush to judgment

In my many years of business, from time to time it was necessary to get rid of an employee. I found it difficult the first time and equally hard the last.

It is a safe assumption that if you must cut a member of your staff, particularly one who has been with you for some time, it would be equally painful. When this person accepted a position in your woodworking shop, both parties were optimistic. However, with some, not everything works out as intended and there must be a parting of the ways. Some can go amicably. But some will be fuming, while others threaten legal action for wrongful dismissal. No matter the case, it always engenders intense emotions for all parties, you, the fired employee and those who remain.

Because of the potential for litigation, this situation is made still more onerous. If not handled with discretion, it could generate a costly lawsuit. This could also apply to “constructive dismissal,” which is where by creating an oppressive environment the employee was forced to leave. Oversights made before, during the exit interview and after the dismissal can significantly affect both employer and employee.

Terminating for just cause

“For just cause” means that the employer has a valid reason to fire this person. The reasons are numerous and would include such infractions as unsatisfactory workmanship, incompetency, excessive absence or lateness, inappropriate behavior, sexual misconduct, using drugs or drinking on the job, being belligerent to customers and other staff members and so forth. Too often it is easy to assume that the problem, if ignored sufficiently long or after a face-to-face discussion, will just disappear. This is wishful thinking. Usually they don’t and, if anything, in most cases, become exacerbated with time.

Wrongful dismissal

Today’s labor laws appear to be structured in favor of the employee. One only has to read the multitude of advertisements by law firms to see that none are for the benefit of the employers. However, this does not limit your right to get rid of an employee for a good reason or for no reason at all such as dissatisfaction with this person. Just ensure that the decision is not prejudicial or could be classified as a wrongful dismissal. This would include discrimination on the basis of race, sex, religion, age, nationality or sexual orientation. You can’t fire an employee who filed a discrimination claim, refused to commit an illegal act, organized a union or has a statutory right.

However, the law is not unfair. It provides the employer the opportunity to prove that the dismissal was not wrongful or prejudicial. Still, be careful. Methodically document the reasons and the steps you have taken in bringing about this action. If terminating an older person or one who has been your employee for several years, it is wise to consult your lawyer and lay out the plan. You might have to defend your action before a judge. You might not be guilty of wrongful dismissal, but the cost of proving your innocence could be exorbitant. If you do get sued, never take any notes into court that could be construed as having even the slightest hint of prejudice. Better yet, don’t take any paper of any kind. Some years ago, when defending a major project foreclosure, opposing counsel snatched my sheath of notes and used some of the information therein against me. The worth of my testimony was somewhat reduced. Destroy any such data that might be in your files.

Before terminating

Firing an employee should never be a “shoot from the hip” reaction to a specific situation. It should be a well-thought-out, yet timely, process. Still, don’t delay it unnecessarily. When operating a real estate and business appraisal practice, an employee struggled with appraisals and I struggled with him for about six months. Had this chap been dismissed much earlier I would have done both of us a favor. There was no way to correct his poor performance. He had the desire to be an appraiser, but lacked the ability. Some people just cannot cut a board straight, no matter how hard they try. When in a similar situation, you must satisfy yourself that you have taken all steps to ensure that terminating this employee is the correct action and doing so is best for all.

The steps

On a confidential basis, begin with a detailed investigation into the situation. Assess both cause and effect. Consider what action should be taken.

• Ensure that the problem or allegations are real and have been or can be substantiated

• Have a sit-down with the employee and in a non-prejudicial manner discuss the problem or allegations

• Give the employee every opportunity to respond

• If the problem is rectifiable, seek an alternative solution to dismissal

• Most importantly, when you are certain that the problem can’t be resolved do not sweep it under the rug. Act with discretion and candor.

Doing the deed

Having concluded that there is no alternative, take a day or three to plan the exit interview so that it creates minimum distress for both you and the employee. Be certain to provide a detailed explanation of why you are taking this action. Be clear about the reasons. Document those reasons. Avoid personal, degrading or vague statements or anything that might suggest that the situation is reversible. Consider the possibility of an irrational, negative combative reaction and perhaps an appeal. Having reached this point do it now — not tomorrow or next week. Never allow an employee a few days or weeks to get his/her things in order. This only permits this person to do nothing to further your business, but to perhaps badmouth you. Resolve the concerns you or the employee has about confidentiality. Whether to provide the employee a termination letter or setting out your reasons your call.

After the termination

Some remaining employees might think you have acted too harshly and prematurely. At other times, they will wonder what took you so long. Saying it’s not your concern or something of this sort may not cut it. You must gauge yourself as to how much explanation is required and what you are prepared to give. There is no definite rule as to how to deal with these situations. Play it by ear and hope for the best.

So far as I could establish, there are no state or federal laws that govern what you can or cannot say to a prospective employer about the now-departed soul. Although not legally required, you might wish to provide a valid reason for the termination. Because of concern about being liable for defamation of character or the reverse — where you give a non-factual glowing recommendation — it is probably best to provide only the date of the termination.

The bottom line

Discharging an employee, particularly one who has been with you for some time, will always be stressful. Because of the possibility of the situation getting out of hand, be certain to go about it carefully, methodically and with forethought. Know and understand the protection given to employees by the laws of your state. You could be sued for a tort action, wrongful dismissal and prejudice including punitive damage for pain, suffering and anything else that comes to some high-price lawyer’s mind. Be cautious. You can legally fire an unsatisfactory employee, but doing it hurriedly can too easily backfire. 

This article originally appeared in the June 2014 issue.

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