HR: Things to Consider when Firing an Employee
Though it may be necessary, it is not easy to fire an employee especially when the latter has put in a long period of service for the company or a personal relationship or bond has developed between employer and employee. However, the process can be made less agonizing for both by gathering all necessary information concerning job termination ahead of time. Also, here are two points that are worth mentioning at the very outset:
First, the employee should already be aware of the company’s disciplinary and termination policies prior to his being hired.
Secondly, you should consider employment termination only as a last resort. Take this drastic step only if performance coaching has not produced favorable outcomes.
The article deals with these areas pertaining to things to consider when firing people 1) before firing, 2) what are the different types of termination, 3) notice and/or severance pay, and 4) termination meeting.
The following are some considerations to keep in mind before taking the ultimate step of firing an employee.
What is PIP (Performance Improvement Plan)
A Performance Improvement Plan (PIP), otherwise termed as a Performance Action Plan may be defined as a written tool that supervisors may utilize to better the behavior or performance of the employee. The PIP looks into performance incongruities recognized in the course of the performance appraisal. It is a wonderful tool, on the one hand, to hold poorly performing employees accountable for their performance and, on the other hand, to provide them with an opportunity to succeed.
Progressive Disciplinary Action
If you find that the employee cannot or is unwilling to better his performance, you may want to begin progressive disciplinary action. Documentation is essential here so that you have a record of all the sequence of steps you took. Once you start progressive disciplinary action for one employee, the steps followed should be consistent for any other employees you fire unless some out-of-the-ordinary happening causes you to take an exception.
Do not fire on the basis of age (more than 40 years), sex, race, religion, disability, national origin or reasons pertaining to being on leave
There exist state and federal laws to safeguard workers from prejudice connected to any of these factors. You should also consider whether a false claim may be made that you fired based on any of these factors even if you didn’t. An example is when you have just one white guy in your office, and all the other employees are Indians. If you have to sack the white employee for performance issues, you have reason to be concerned about a possible national/race origin claim.
Do not fire in revenge for an employee reporting you to the authorities for violation of law
If firing an employee is based on complaints made by a supervisor, ask for documentation of the incompetence or keep your own copies of performance reviews. If the progressive discipline process causes the outcome of termination with cause, meticulous process documentation proving that progressive discipline was consistently and rightly applied would be required. So if you did not do it this time, next time, make sure you have copies of all the warnings or negative reports you provided the employee with. You would be safeguarding your company and yourself if you have proof that on two or more occasions, you provided the worker with a warning in writing pertaining to his attitude or job performance being sub-par.
If you possess written policies pertaining to employee discipline protocol for improper conduct or insubordination, or poor performance reviews, make certain of their being followed to in the termination letter prior to firing someone on those grounds.
Consider whether the employee will do better if he is put in another role
Just because an employee does not perform well in the particular department he is in, doesn’t necessarily mean he is a bad employee. There is possibly plenty of room even in a not-so-big business, for job motility. He may just be at the wrong post or department. So don’t fire someone for bad performance without first analyzing whether he would do better somewhere else in the company. Engage in honest conversation with your peers pertaining to the issues you had with the particular employee and the strengths you see in him.
Make sure you are aware of and understand all the procedures and protocol from beginning to end. You must be in a position to answer to questions pertaining to how to respond when the employee requests for his last paycheck or how to collect property such as electronics or keys from the employee. The chances are also very high for the employee to want to know why he was fired in the first place, and obviously so. So be prepared and don’t forget to have documented examples of unsatisfactory performance in hand. If you’re unprepared, you risk saying the wrong thing that would possibly push you into hot water, if not now, then later. Safeguard your business and workforce by refraining from winging it when it comes to firing an employee.
Make sure you have the approval of higher authorities and are following internal procedures
Unless you are the company’s owner, you require formal approval from your superiors to fire an employee. The distance up the ladder to which you need to get the approval depends on the size of your firm as well as your position on that ladder. However, irrespective of these factors, the approval process should incorporate your boss. The reason you need to do this is because people tend to object to being dismissed from their job and their objection would probably include a complaint. When the employee does complain, it is possible that your boss would demand reinstatement of the fired employee. Imagine the situation of having a bad employee remaining in your department because of ignorance from your boss’s side that caused him to override your decision. So make sure you get the necessary approvals and agreements prior to terminating.
Did you give the employee ongoing feedback about his performance before taking the ultimate step? Before firing an employee, you must make sure that you gave him ongoing feedback about his poor performance and gave him a chance to improve. However, this can be foregone if the employee’s actions call for immediate dismissal.
It is good to consult a lawyer, be sure you understand federal law, also each state has its employment laws. Employment laws vary with state, so it is essential to consult an HR specialist or lawyer in the particular state of the employee’s employment to know about any specific state requirements. In addition, if you are dismissing many employees at one go, there are special laws for that too, at the federal and state levels.
The exit interview provides you with an opportunity to understand more about the strengths and weaknesses of your company from employees who are fired. It doesn’t just provide feedback pertaining to your business’ operations, but also helps reveal worrying aspects about pay and working conditions, and issues with the management and employees. Chances are higher for fired employees than employees who voluntarily resign to give you the truth. You can gain useful knowledge, tips, contacts and more from the departing employee.
Exit interviews can also give you documentation that could be potentially useful should you ever be charged for wrongful termination. During the exit interview, the employee may reveal points which you can utilize in your defense, especially if the employee acknowledges his unsatisfactory performance on the job.
Although he face-to-face discussion in an exit interview is an personal and ideal way for both parties for reasons provided above, if you have a concern that firing an employee might provoke violence, then an alternative way is to write a termination letter instead of having a face-to-face confrontation.
WHAT ARE THE DIFFERENT TYPES OF TERMINATION
Five types of termination / firing are discussed below.
1. Voluntary Termination
As the term itself indicates, this kind of termination refers to the employee resigning out of his desire to do so. The employee would furnish a resignation letter, or else, some notice that includes the date he intends to end his services. Though it is not necessary, the employee may provide a reason for voluntarily vacating or terminating his position.
2. Termination with cause
At law, this kind of termination means an omission or action on the part of the employee has destroyed the employment connection between employer and employee to such an extent that the damage is irreparable. Typically, this type of termination happens when the employee is fired for a grave reason pertaining to his conduct.
Not all labor/employment standards have ‘termination with cause’ as a classification, but those that do, find deliberately avoiding duties, disobedience and willful misconduct as permissible reasons for it. Situations that could warrant termination with cause include violence (actual or threatened), harassment, violation of company ethics policy or code of conduct, watching pornography online or extreme insubordination.
3. Termination without cause
This form of termination has to do with termination of the employee’s employment for reasons not pertaining to misconduct. For the same, a termination notice and maybe severance pay would be needed as sketched in the labor/employment standards. For termination without cause, the employer is not legally bound to provide a reason. Having said that, the majority of terminated employees would want to know the reason for the termination. You can be honest and fair when asked about the reason, however, under no circumstance, must you claim you have a reason.
With respect to nonprofit organizations, termination without cause is frequently the outcome of changes in funding or organization restructuring.
4. Employment at will
If the particular state is one that recognizes employment at will, it means the employee can be dismissed at any time and for any reason, whether or not there is any cause to do so. Employers are not even required to furnish a reason for terminating the employee from his job. However, to protect against possible claims of discrimination, it is advisable for employers to keep supporting documentation ready whether or not a case is put forth at the termination meeting.
5. Mutual Termination
Sometimes, there comes a situation when the employer feels a particular employee is unsatisfactory at his role. What’s more, the said employee himself doesn’t feel like things are working out well at his job. In such a situation, both employer and employee part by mutual agreement, such that neither party is held liable for the termination. Depending on the nature of the contract, the employer may call for the employee to remain till his contract expires, or a replacement is found.
NOTICE AND SEVERANCE PAY
Notice is the duration of time between telling an employee in writing of the termination and the exact date of the termination taking effect (this is the last day the employee will receive wages). An employer cannot make an employment agreement with an employee for a period below the minimum notice requirement stipulated in labor/employment standards.
When notice is required
In the majority of cases, an employer must furnish written notice of the aim to end employment and the termination date. Suppose you as an employer wish to terminate with immediate effect, the majority of labor/employment standards give employers the choice of payment in lieu of the notice period (however a written termination notice with the date, when the employee’s termination would take effect, is still required). The amount for payment in lieu of notice depends on the employee’s regular weekly salary. However, benefits should also be covered for the period of notice.
After the initial month(s) that don’t require a notice for termination, the length of prior notice called for by law, for termination, is directly linked to how long the employee served the organization.
When it is not required
A notice is not required for termination for a particular period at the start of employment, depending on the particular province.
Payment in lieu of notice
This means an employer would perhaps opt to have the termination proceed immediately and so instead of a notice, provide payment to the employee for the notice period required by legislation or concurred with in the employment contract (if more than that called for by legislation).
Some jurisdictions call for an employee who is terminated without cause to be given severance pay. The amount of severance pay varies with the employer’s size and the employee’s length of service.
Here are some pointers to keep in mind with respect to the termination meeting.
Location: Choose it carefully. It should be a neutral site (a meeting room would be good) instead of your office. The location should be one that ensures privacy and enables the terminated employee to leave without the discomfiture of facing or bumping into other staff.
Be sensitive about the day/date, whenever possible: Make sure the termination meeting doesn’t fall on any date of importance in the employee’s life. Try to terminate towards the close of the day so that all or most of the employees would have already left, thereby again, avoiding embarrassment to the employee to be terminated. Avoid vacations and holidays for termination. Termination on a Friday is an absolute no-no. An employee who is terminated on a Friday will not be able to gather counseling or legal advice before the weekend and so, will possibly build up anger and worry over the whole weekend with respect to his horrible situation.
Documents should be ready: The letter of termination which provides the date when the termination takes effect and any amount you are giving, should be ready.
Who should be present?: Two people from the management team should be in attendance at the meeting.
Be brief and speak only what is relevant: Make the situation clear to the employee but avoid personal, emotional and other unsuitable remarks. Admit that the employee can seek legal counsel if he wants.
Make certain that the employee gives any of the organization’s property in his possession back to the organization and also shares computer passwords (if relevant). However, treat the employee with dignity when ensuring this. An example is: supposing you want to discontinue the employee’s computer access, provide the employee with a chance to prepare a farewell email or any other farewell tweet, before you proceed with cutting the access. If you have real security concerns, you can have someone sit with the employee till he finishes and have the security accompany the employee as he leaves the building. However, don’t resort to these means unless it is necessary.
In closing this article, it is worth mentioning that you remember to be respectful but impersonal to make the termination process less of a hassle for both you and the employee.
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