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Discipline or Discharge?

Discipline or Discharge?

SML Perspectives
(July 1, 2011)

The Tough Decision

In today’s tough economic times, employers are having to make more and more decisions about whether to discharge poorly performing employees. In facing those judgments, there are few absolutes and hardly any lines in the sand as to what conditions require what outcomes. But, let’s look at some of the economic and emotional costs of the borderline employee that can factor into what to do.

Certainly, there are a host of economic costs: (1) the initial cost of hiring and training new employees; (2) the invested cost of the employee’s salary and benefits; (3) the cost of the employee’s accrued leave and vacation time; and (4) the cost of lost business caused by poor performance and mistakes of the employee.

Some of the less quantifiable and more emotional costs include the following:

  • the frustration of having to deal with the employee;
  • the low morale of co-employees caused by the marginal employee;
  • the drain on valuable time in having to deal with problems created by the employee;
  • the additional supervision required of the employee;
  • the additional time necessary to document problems and pursue corrective actions; and
  • the difficulty of getting the job done when having to rely upon the borderline employee.

Once an employer is at the point of weighing unavoidable costs, though, the best opportunities to make good employment decisions are already gone. Why? Because the best decisions are those made earlier, as part of a good, thorough disciplinary system. If used properly, it can keep the employee from reaching the discharge borderline in the first place.

Imposing well-defined expectations, clear rules of conduct, and consequences for misconduct or poor performance is the first step. Many supervisors hesitate to take advantage of an employer’s disciplinary system. Often the supervisors are poorly trained, do not appreciate the value of investing the time required to mete out discipline, would rather avoid conflict, and—quite simply—do not act until they are pushed past their limit, which is when they march to upper management and demand that someone be fired. So, the second step is motivating supervisors and training them on how to handle disciplinary matters. Third, even the best intended supervisor can fall short if his or her documentation is poor. Employers often face difficult-to-defend lawsuits from discharged employees because no one properly recorded a history of poor performance or bad conduct.

Adequate documentation demonstrates that disciplinary action and/or termination was properly motivated and administered

by the supervisor consistently and in accordance with company policies and procedures. When evaluating whether to discharge a borderline employee, look to see that the key records of the employee’s tenure with the company are included in the personnel file:

  • job application;
  • receipt of employee handbook and job training;
  • decisions to promote, demote or pass over an employee;
  • complaints about the employee’s job performance and/or conduct;
  • disciplinary actions;
  • performance evaluation/annual reviews; and
  • the decision to terminate the employee.

If avoiding litigation is a component of the risk analysis, as it almost always is, gaps in paperwork can be fatal to an employer’s defense of wrongful discharge claims. Sometimes it is advisable to postpone a discharge in order to ensure that proper documentation, whether in the personnel file or in the hands of someone at the management level, exists to help prove the legitimacy of the reasons for the job termination.

This wait-and-document approach can be particularly important when files include information that would discredit the employer’s decision to dismiss a borderline employee. For example, what do the employee’s evaluations say? Many times, supervisors and employees look to this document as unimportant, or as nothing more than an opportunity to learn what the next annual salary increase will be. Consequently, even an actually poor performer may have a file full of satisfactory job reviews. Generally speaking, this borderline employee is not one whom management should want to discharge for poor performance. Instead, make the evaluations accurate so that the ultimate decision can then be made based on good facts, not on bad ones carelessly created by supervisors who thought they would never ultimately matter.

So, discharge decisions have costs—direct and indirect. It is better, instead of facing those costs, to intervene earlier through the skills of supervisors who are well versed in the company’s appropriate disciplinary policies and procedures, who document the key events of the employee’s tenure, and who complete regular and reliable performance evaluations. Even when these steps are not enough to keep an employee from crossing the borderline and being fired, they may well keep him or her from successfully challenging the decision in court.

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George "Jerry" J. Oliver
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