Employers are often afraid of financial repercussions when disciplining or firing employees. Disgruntled employees can sue or unionize, which can be financially devastating for the company. On the other hand, condoning serious misconduct can lead to a loss of productivity and a toxic workplace.
If employers understand and act in accordance with employment laws, they can reduce the financial implications that may result from employee discipline.
If an employee's conduct is called into question, an employer should conduct a fair workplace investigation. Not doing so, will put an employer at serious risk of litigation. Employment lawyers will use a company's lack of disciplinary documentation, to negotiate large settlements on behalf of their employee clients. That said, although an employer must conduct a fair workplace investigation, it does not have to be long, involved or expensive. Ask your employees about the situation, look for witnesses, and keep notes. This will provide support for future disciplinary decisions and commit your employees to a written record of events.
Issue Formal Written Warnings.
If you conduct a workplace investigation and find that your employee was at fault, it is important to issue a formal written warning that if the behavior continues, the employee will be fired with cause. The behavior may seem trivial now, but if it continues or worsens, you will need a history of documentation to support discipline or dismissal.
Meet with Your Employee at the Outset.
Surprisingly, some companies speak with the accused employee last, or not at all. There are many advantages to speaking with your employee at the outset of a workplace dispute:
- They may immediately admit to the wrongdoing.
- They are permitted to explain their version of events, which may or may not be corroborated during the investigation.
- It takes the complaint seriously and holds your employee accountable.
- An early meeting reduces the employee's ability to explain away evidence that comes up during the subsequent investigation.
Give Warning Before You Terminate Employees.
Even with cause, if you fire an employee without prior written warnings, you may face a major legal battle. You could end up paying for wrongful dismissal and even damages for bad faith or unfair dealing. Only the most significant charges, such as embezzlement or serious workplace harassment or violence may be cause for a dismissal without prior warning.
Escalate Your Level of Discipline.
If you issue multiple warnings, with no progression of discipline, this implies a tolerance of misconduct. Employers must demonstrate that a repetition of the negative behavior will lead to increasing levels of discipline, up to and including termination. In employment law, this is referred to as 'progressive discipline'.
Do Not Give Performance-Based Reasons for Termination Without Cause.
If you terminate an employee without cause, it is almost never a good idea to give performance or conduct-based reasons for the dismissal. These reasons often increase the likelihood of litigation and encourage negative emotional reactions from your former employee. Further, these reasons do nothing to reduce your liability for wrongful dismissal.
Resist the urge to guarantee immunity.
Some employers guarantee immunity to employees who report misconduct. This may increase reporting, but it seriously hinders the employer's ability to discipline employees. A better alternative is to have a nuanced policy that protects against retaliation while preventing employees from shielding themselves by self-reporting.
Proving just cause for terminating employment is difficult, but this should not dissuade you from firing employees when necessary. Misconduct must not be tolerated as it can cost the company both money and morale.
If you are considering terminating an employee for just cause, it is imperative that you seek expert legal advice. Asserting just cause where no cause exists can cost you $100,000 or more in punitive damages.
Contact Hyde HR Law today for expert legal advice and representation.