Discipline (and terminate) employees

When dealing with disciplinary action and termination, you as may feel very uncertain about what you can and cannot do and avoid legal trouble at the same time. How can you exercise the rights you have in setting some workplace rules and guidelines and, then, enforcing those rules...without the risk of a lawsuit?

The greatest protection you can give yourself and your business is to get to know, understand and use the rights you have as an employer...and, at the same time, know and understand your statutory limitations. Disciplinary actions often result in discharge. And discharges, can result in litigation. So, it's easy to find yourself in the hot-seat the day after a dismissal. Here are some basic do's and don'ts that will help you greatly reduce your risks of winding up in court.

Approach termination with the same care and consideration you give to the hiring process. If you’ve got poorly performing employees or workers you can’t afford to keep during seasonal slumps, they should be removed from your payroll. But business owners say, terminating employees, for any reason, is one of the toughest tasks they have to do.

Managers get in trouble when dealing with unacceptable performance for four primary reasons:

1.      they wait too long before addressing the problem and, because of that, they operate from a position of anger and revenge

2.      they see employees as disposable assets rather than partners in their success

3.      they are too quick to look for ways to terminate someone, instead of looking for ways to help the individual improve

4.      they forget common sense, decency and respect, when dealing with others

The First Steps
The solution begins with a written policy outlining the reasons and procedures for terminating someone in your company. Ideally, you should have an employee manual and detailed job descriptions so there is no doubt as to what is required of the employee, from a performance perspective and what the consequences are for failing to meet the company’s standards.

When an employee is performing poorly, your policy should clearly indicate the steps managers and supervisors must take, such as counseling sessions, verbal warnings, written warnings, probationary periods, suspension and termination. The policy should also state the grounds for immediate termination, such as theft, insubordination, falsification of company records, fighting and negligent disregard for safety.

No one should ever be surprised when they are fired for performance reasons. They should know on the day they’re hired what can get them fired.

Whether mandated by law or simply by good business practices, you should recognize and respect certain rights that employees have, including:

• the right to know what is expected of them and the consequences for not meeting those expectations
• the right to a consistent and predictable response when rules are violated
• the right to fair discipline based on the facts
• the right to question the facts and present a defense on their behalf
• the right to progressive discipline
• the right to appeal the disciplinary or termination action
• the right to be considered and treated as an individual

Before It Happens
Before taking the final step in the termination process, review the employee’s file to be sure your policies have been carefully followed. Focus on observable performance rather than personality traits, such as a bad attitude. Make sure your action meets the standards of “just cause.”

If you can answer “yes” to all of the following questions, this is an indication that you have sufficient reason and grounds to terminate the individual’s employment:

1.      Did you give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of his or her conduct?

2.      Was the rule or managerial directive reasonably related to the orderly and safe operation of the business?

3.      Did you conduct a thorough, fair and objective investigation to determine whether the employee did violate the rule or disobey the managerial directive?

4.      Is there substantial evidence that the employee violated the rule or disobeyed the managerial directive?

5.      Have you applied the company’s rules, orders and disciplinary actions without discrimination?

6.      Was the action taken reasonably related to the seriousness of the offense and the employee’s record with the organization?

A Step-by-Step Approach
Progressive discipline is a series of steps of increasing seriousness designed to provide employees with specific notice of their need to improve their performance and the consequences for not doing so. Progressive discipline can also be a vital tool for correcting poor performance and protecting your investment in an individual employee. Used properly and effectively, it can actually reduce turnover by motivating workers to improve.

Most progressive discipline systems have the following three basic components:

• a verbal notice or warning
• a written notice or warning
• a final notice which may be combined with a probationary period or an unpaid suspension from work

There are several advantages to this approach. It lets employees know exactly where they stand. It doesn’t punish the employee by taking wages, so it reduces the chance of sabotage or violence at work. And most important, it places responsibility for improvement, directly, on the employee.

The Termination
Of course, there will be times when all of your best efforts fail and you must let someone go. Once you’ve followed all the necessary and appropriate procedures, reviewed the file and made the decision, you still need to do more than just say: “You’re fired.”

Prepare for the termination discussion with as much care as you would give to any important business meeting. Know what you’re going to say; if necessary, prepare a script and practice.

Anticipate employees’ questions in advance but recognize that they probably won’t remember everything you say. Avoid potential misunderstandings by having all the information concerning severance packages, benefits, insurance, etc., in writing so that they can take it home.

You may choose to offer employees the option of resigning rather than being fired, which serves your needs while allowing them to save face. If you do this, however, be sure your internal documentation clearly reflects the true option of “resign or be fired,” just in case you ever need to prove that the resignation was not voluntary.

Schedule the meeting for a Monday or Tuesday, not Friday. This allows employees to begin a job search immediately, rather than taking the weekend to stew over the situation, perhaps getting angry and plotting some sort of revenge.

Conduct the termination meeting in a private place. If you suspect the employee could become violent, arrange to have security nearby but don’t make your fears obvious—this could fuel a volatile situation.

When the meeting begins, avoid small talk and get to the point quickly. Be firm and businesslike; make it clear that there is no room for negotiation and the decision is final. The meeting should not take more than a few minutes—just enough time for you to announce the termination, briefly provide the reason, explain any benefits the employee has coming and end the meeting. Tell the truth but don’t apologize. Obtain any company property such as ID cards, keys and tools. Consider arranging for an after-hours collection of personal effects. If appropriate, discretely escort the employee off the premises. And, if you suspect the person is too upset to drive safely, offer alternative transportation.

The Aftermath
Firing people is one of the most unpleasant tasks an employer must deal with, so give yourself permission to feel bad about the situation but, remind yourself, that you did your best to avoid the termination with counseling and warnings.

Once the termination meeting is over, you need to notify the employee’s co-workers that the individual has left the company. Again, be brief and to the point. Don’t provide any details about what led up to the termination; chances are other employees are aware of the situation and they probably know more than you do. Besides, you should take care in what you say to avoid a charge of violating the terminated worker’s privacy. Focus on the future—discuss how the departed employee’s work will be handled and what you’re doing to find a replacement.

Finally, keep in mind that the person you fire today may re-enter your professional life as a customer, supplier or competitor. Appropriate steps and behavior, on your part, will help any future relationship with a terminated employee be a positive one.