Before Firing for Misconduct or Poor Work

April 13, 2006

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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" incident thoroughly.

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).

Warning

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.