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The Termination Decision: Words To The Wise

By Don Phin

When employees simply don’t “get it” or don’t want to “give it,” it’s time for them to move on. These guidelines can benefit both your company and the terminated worker:

• Give the employee a fair chance to correct their performance. Americans are used to a three-strike process in which a verbal warning, followed by written counseling, precedes termination. Unless the worker has been insubordinate or destructive, most judges and juries will consider a three-strike rule fair.
• Be consistent. The fastest way to get hit with a discrimination or wrongful termination claim is to treat one person differently from another under similar circumstances.
• Document, document, document. A termination based on poor performance shouldn’t surprise anyone, especially the employee. Encourage your workers to “own” their performance by using the Employee Correction Form (this month’s Form of the Month). Make sure employees sign any warnings and have the opportunity to protest or complain about disciplinary actions.
• Treat them with kindness on their way out. Being terminated is a traumatic event, no matter who’s at fault. Focusing on the employee’s conduct rather than their self-image makes it far less likely they’ll respond to termination with an accusation or claim.
• Think “liberation,” not “termination.” It’s unfair to keep a person in a position where they can’t succeed or find joy in their work. Employees often have problems with ̶moving on,” even when doing so would be in their best interest. They’re held back by their personal fears, which might include a lack of skills or motivation. Saving people from a lesson they need to learn does a disservice to them — as well as to your business.
• Get a second opinion. Involve another manager or human resource executive in the process to provide another perspective. Have this person, rather than the employee’s manager, communicate the termination decision. Then get them to conduct an exit interview as a final opportunity to catch wind of, or defuse, any potential litigation.

ABOUT THE AUTHOR

Don Phin is an attorney who for more than 16 years, has specialized in the litigation of employment and business cases. He has represented hundreds of employees, partners and companies in that time. Don has litigated wrongful termination, race and age discrimination, sexual harassment, whistle-blower, trade-secret theft, fraud, partnership dissolution and many other cases to a successful conclusion. In 1995, Don obtained the status of a Certified Professional Consultant to Management (CPCM). Since then, he spends a large part of his time consulting, writing, speaking and coaching.

Don’s seminars, workshops and reports have been delivered to such groups as the International Risk Management Institute, Insurance Marketing and Management Services, The Executive Committee, The CEO Club, The Society for Human Resource Management, Foundation of Enterprise Development, The National Human Resource Association and The National Association of Professional Consultants to Management.

Risk management is about possibilities and probabilities. It’s about assessing the 80/20 of exposure and then committing the strategies and tools needed to protect yourself. I hope these insights will help those of you battling on the front lines. If you have any questions regarding the trials and tribulations of managing in today’s high-risk environment, e-mail or give me a call at 800-234-3304.

riskVue | The webzine for risk management professionals
February 2002