How to fire your problem employee and avoid litigation?

How to fire your problem employee and avoid litigation?

Illegal dismissal is a growing litigation area in Labor Law that employers need to be aware of every time they terminate an employee. Many employers are reduced to penury out of a wrongful act of dismissal.

1.) The first step in avoiding litigation is to have company policies or Rules and Regulations developed to address the most common employee work performance and discipline concerns, then have each employee read and sign that they received these policies - usually done upon engagement of the employee. The policies should outline the company’s discipline process and outline what behaviors that an employee can be terminated immediately for, such as, theft, sexual harassment, and endangering other employees. Then coach your supervisors in using your company’s policies in connection with terminating employees. Most companies will have one verbal warning, one written warning, and then termination after the next incident. The company should develop forms for both the verbal and written warnings that supervisors can use. (If your company is unionized, there may be other steps involved in the termination process- usually outlined under the grievance procedure provisions in the Collective Bargaining Agreement)

2.) Document any written warnings that are given to the employee. During the written warning, be specific about their work performance concern and concentrate about what you expect to see as improvement. For example, “Helen, today is the third day in a row that you have been 30 minutes late to work. All employees are expected to be on time to work and I will be monitoring your future arrival times for the next four weeks. If further tardiness occurs, I will have to move on to the next disciplinary step.”

3.) Observe extreme caution in terminating employees on minor offenses such as tardiness, absence without official leave and other similar violations because recent decisions of the Supreme Court tend to favor the property rights of the employees rather than the disciplinary rules of employers. We therefore suggest that employers use lesser modes of penalties that are incorporated under your company rules and regulations for violators other than the supreme penalty of dismissal such as suspension without pay.

4.) Once you have determined that discipline is in order, set up a meeting with the employee right away. Write a "show cause letter" immediately requiring the employee to explain in writing usually within 24 hours from receipt of the letter especially if the violation involves serious offenses such as pilferage. For example, "Jay, please explain in writing within twenty-four (24) hours from receipt of this letter in the matter of your involvement in the pilferage of company properties. In the meantime, you are required to attend the formal investigation on March 28, 2003 at 2:00 PM at the President's Office."

5.) Keep the investigation private and away from eavesdropping co-workers and office gossip.

6.) If possible, request the assistance of your retained counsel to personally conduct the investigation. With his trial skills, the lawyer may ask the employee regarding his participation or non-participation of the charges, who will then recommend the proper penalties corresponding to the violation. Write down the minutes of the investigation and have the employee and all personnel who attended the investigation sign the minutes.

7.) After the investigation, if evidence of guilt is strong, suspend the employee immediately for a maximum period of 30 days without pay on the ground that his presence in the company poses a threat to the properties of the company. Be sure to come up with a Decision terminating the employee or or before the 30 day period, otherwise you will pay his salary after the lapse of the thirty (30) day period.

8.) Be sure to notify the employee of your decision to terminate him either personally or by registered mail at his last known address. Just causes for termination falls under Articles 282 of the Labor Code. Serious violation of company rules and regulations are also just causes for terminating an employee. If the employee refused to personally received the Notice of Termination, you can make an annotation "REFUSED TO RECEIVE" at the back of the letter. Proceed to send a copy of the letter of termination at the last known address of the employee.