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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).
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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. |
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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.
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