Firing for Misconduct or Poor Work
There are a number of steps you need to take before you fire
somebody for insubordination, breaking a work rule or any other
type of misconduct, or for simply performing poorly on the job.
These steps include documenting the problem, using fair rules
and procedures, and investigating the "last straw"
First, though, a word about what not to do: we
recommend that you make a personal commitment that you will never
fire an employee on the spot.
Acting out of anger or frustration is a good way to get
yourself in legal hot water. Employees who are fired in this way
are the most likely to sue you or to cause other trouble for you
and your business. If a worker does something so terrible that
you must take immediate action, tell the worker that he or she
is suspended, effective immediately, while you investigate
(or cool down). Having said that, we realize that even the
best-laid plans sometimes go astray, so at the end of this
section, we've provided a few ideas on repairing the damage if
you do fire
someone on impulse.
The safest way to fire someone, from a legal standpoint, is
to be sure that you have a valid, nondiscriminatory business
reason for the action, and that you have enough documentation to
prove it. Your documentation must be created in the normal
course of business, before you fire the person (except,
of course, for a record of the actual termination discussion).
Don't get caught trying to reconstruct
documentation (such as warnings or poor
performance reviews) after the fact, when you
should have been creating them all along. Also,
the documentation process should not be used to
"build a case" against one worker when
other workers in similar situations did not have
their actions documented. Selective
documentation may be proof that a person was the
victim of discrimination.
Playing fair. It's important to remember that workers
(and courts) are more likely to perceive a firing as
"fair" if your employees have had plenty of notice
about what conduct and performance you expect from them. It's
also important that workers receive regular feedback about their
job performance, and that they are warned whenever you find that
they are not living up to expectations.
For that reason, your ability to "fire right"
depends on the groundwork you lay, starting as early as the
first day you hire somebody. You need to:
- Establish fair work rules and policies. Your
employees need to know what you expect of them in terms of
workplace rules. Many companies create a company handbook
(or hire a freelance writer to do it for them) that contains
their key rules, and they give a copy to every new hire. If
you're hiring just a few employees, you don't need to create
a whole handbook, but you should give some thought to the
kinds of reasonable
rules your business requires.
- Enforce your rules fairly, using progressive
disciplinary measures when necessary. You can have the
most reasonable set of rules that's ever been written, but
if you don't enforce
your rules, they are useless. For legal purposes, you
must apply your rules equally to all your employees, if
you hope to rely on them.
- Establish a performance feedback system to let people
know how they're doing. Discipline is not very effective
for an employee who doesn't violate any rules but is
incompetent or is not performing work to an acceptable
level. Through regular performance
reviews you can bring the worker up to par, or at least
document your attempt to do so.
- Investigate the "last straw" incident
thoroughly. Before you fire someone for misconduct, you
should take the trouble to investigate
as thoroughly as you can. In many cases the investigation
can be accomplished in just a few hours, so don't ignore
this important step. Sometimes, after investigating, you may
decide not to fire the employee after all.
These concepts have been used with great success by many
large and medium-sized companies. Such companies tend to have
big human resource departments that spend a great deal of time
establishing elaborate systems that, in turn, take a lot of time
to use. But don't be alarmed. You can "skim the cream off
the top" of these systems by borrowing only the essential
elements and adapting them to fit your business.