Page 25 - BusinessWest January 9, 2023

Prove It (in Preparation for the Battle)
If you can’t prove it, abort the mission. Go back to the drawing board. Go to plan B. Joking aside, preparing for appropriate employee terminations is a long game. It starts with consistent application of procedures, processes, poli- cies, and practices. Probably the most important thing is documentation.
Consistent application of the ‘four Ps’ over time may take an investment of time and money into creating them if you don’t already have them, and training managers and supervi- sors in the art of holding employees accountable.
Among other things, there should be consistent application of all conduct and performance-related policies. There should be consistent application of all of the policies, procedures, and practices associated with managing human-resources func- tions such as leaves of absence and request for accommoda- tions, as well as employee complaints made and investigated.
All of these should contain a component that enables track- ing the underlying data and providing the ability to obtain and distribute the underlying information that supports assertions made. So you want to terminate an employee because he has been to work only seven out of 19 days, and on the seventh day he violated a safety policy and then stole your candy bar? You should be able to show documentation of these occurrenc- es that were created in real time — including, of course, when the company had the initial conversation with him for being absent the first few times, checking to make sure it wasn’t actually a protected leave of absence.
Once you have the documentation, sit him down and tell him that he is being terminated from the job because of his inability to perform and because of his violation of the atten- dance policy. Have a witness. If you don’t have the documenta- tion, sit him down, put him on notice that he is in the line of fire, and start documenting. Provide him with expectations, and then document it thereafter. Most likely, this will just delay the inevitable, but you never know. Regardless, at least you will have something to take with you into battle.
Make the Business Decision Informed by the Data, and Document It
Please know, you can terminate an employee for any rea- son at any time so long as it is not an illegal reason. That means you cannot terminate because of an employee’s protect- ed status or activity or in a manner inconsistent with a collec- tive bargaining agreement or other employment agreement.
As such, if you want to terminate a person for business rea- sons that have nothing to do with the person and everything
to do with your business needs, that is OK too. But you should prove it. Do you have the data to back up your decision? You don’t have to have it, but if that person files a complaint, you will want it, and you will want to be able to attest that the busi- ness analysis was done prior to the termination. Otherwise, they will scream ‘pretext,’ meaning you just made that up. Plus, doing the analysis first may help you assess the risks of terminating an employee for business reasons.
There are always risks. Is it cheaper to keep him after assessing those risks, or not? That is a legitimate fiscal busi- ness concern. There are risks associated with not terminating employees as well. Be sure to document those, too — not just in the business case (e.g., budget concerns), but also in the ‘do I have enough to terminate this employee for conduct?’ case. Some examples: if I don’t terminate, there will be allegations that I did not maintain a harassment-free workplace; or, I ter- minated another employee for this same behavior last year, and there is no legitimate reason distinguishing this employee from being terminated for the same; or, he keeps violating safety procedures, and someone may get hurt.
Terminate with Grace and Pay What You Owe
Be respectful to all employees, including those who are coming and going. He knows
“Preparing for appropriate employee terminations
is a long game.
It starts with consistent application of procedures, processes, policies, and practices. Probably the most important thing is documentation.”
>>
Fire
Continued on page 29
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