Firing: When Worse Comes to Worse

Firing is an emotional business for the manager and for the employee. There's no denying that losing a job can be a shattering event in someone's life. The person responsible for the decision to fire carries a heavy burden. Often managers confide that they can't sleep the night before and they cry afterwards.

A complicating element is the dramatic rise over the last ten years in employee lawsuits for wrongful discharge. Once employers were free to dismiss their employees at any time for any reason or no reason at all. Now a growing body of court decisions, with whopping back pay awards to plaintiffs, has established a requirement that employers must prove just cause.

In this litigious atmosphere, some managers are afraid to discharge employees who are clearly unable to perform their jobs. Or perhaps an employee has committed an unacceptable act, such as theft of cash or merchandise. The manager may feel clear about the need to fire the employee but may still hesitate out of fear of legal and public relations consequences.

Managers in co-ops find it particularly hard to fire because there is often an expectation among employees (and perhaps members) that the co-op should be more compassionate, more accepting, less demanding than other employers. Of course, this expectation does not address the injustice done to coworkers who have to work hard to pick up the "slack"; or to members who encounter unstocked shelves, long register lines or indifferent service due to a poorly performing employee. It could be argued that firing is an act of compassion, setting the person free from a self-defeating situation to find more success and self esteem in another line of work. How can you as a manager take this step that you believe to be right, without unduly hurting the co-op or the employee?

The following guidelines apply to situations where employees are dismissed for unsatisfactory work or misconduct on the job, as opposed to those laid off due to lack of work.

1. Follow personnel policy

You need a disciplinary action policy that is disseminated to all staff, and then you must follow it. The precedent set by recent court decisions does not mandate any particular steps you must take, but it does hold you accountable for abiding by your own rules. Society has a legitimate interest in protecting people from arbitrary or capricious deprivation of their livelihood. Employers must be able to prove that they treated all employees consistently.

Since you will be expected to follow your policy precisely, it must be flexible enough to allow managerial discretion in dealing with a variety of situations. For example, the policy should not require management to give an employer a specified number of days to improve performance. The length of a probation period should fit the circumstances. An employee who is rude to customers shouldn't be guaranteed a month's probation. It would be absurd to allow that behavior to continue in the absence of improvement. On the other hand, an employee who has been frequently late might warrant a long probation period to demonstrate his commitment to sustained punctuality.

2. Document every step

Except in cases of serious unethical or illegal conduct, employees should be given the opportunity to change behavior and improve performance in order to save their jobs. Typical disciplinary action policies will specify a progression of warnings and/or a probation period before a person is fired.

If you have a conversation with an employee about a performance problem, jot down brief notes afterwards, including the date and your understanding of what happened. If you need to have another such discussion, make more detailed notes. Of course, any formal warnings following your disciplinary action policy should be in writing.

Performance evaluations provide essential evidence of unsatisfactory work. Less than honest evaluations that ignore or downplay serious problems are unfair to employees and have been used against employers in court.

If a fired employee files for unemployment benefits, don't tell the state unemployment office a different story from what you told the employee, or from what your own documentation shows. That too can be used against you.

3. Act without haste

Get feedback from others before taking the final step. Go over the sequence of events to make sure you have followed co-op policies. If someone has specific responsibility for personnel administration, that person should be consulted. If the co-op doesn't already have a relationship with a labor lawyer, now is the time to retain one.

Given the gravity of firing and its possible consequences, no one should be fired without the explicit approval of the general manager or a person s/he designates in her/his absence.

Even in the event of proven grave misconduct (such as theft, use of drugs or alcohol at work, physical assault or flagrant refusal to follow instructions of a supervisor), it is best not to fire people on the spot. Too often you run the risk of acting out of anger with incomplete information. The alternative is to suspend the employee without pay for at least 24 hours while management investigates the facts of the case. This provides a cooling off period but keeps the employee out of the store until you can be sure that firing is the appropriate action.

4. Allow employees dignity

Breaking the news requires a blend ofsensitivity and firmness. Of course, the interview should be private. Get to the point quickly; make it clear that this is not just a reprimand or warning. Present your decision as irrevocable; all other options have been explored or exhausted.

Be honest about the reasons for firing, using language that is as objective as possible. You are legally required to give your reasons in writing, if the employee requests it. If you have followed your personnel policy, your decision should not come as a total surprise. Even so, some people will argue in the desperate hope of getting you to change your mind, or at least to vent their hurt and anger. It seems like a superhuman achievement for a manager to refrain from defensive behavior in this situation. Active listening may help -- reflecting the essence of the content and feelings of what the other person is saying. Perhaps role playing the firing interview in advance with another manager will help you be psychologically prepared. Keep in mind that your role in the meeting is to communicate the decision, not to defend it.

If you can do this in good conscience, offer to write a job reference that emphasizes the person's strong points. Someone who is a disaster in a retail grocery store could make a good employee in a different type of work.

There are two schools of thought about the timing of firing. Some say it is best to wait until the end of the day to minimize embarassment for the fired employee around her/his co-workers. Others say they can't carry on all day as if everything is normal, knowing that at four o'clock they have to break the bad news. At least everyone agrees that it is unnecessarily cruel to fire someone the day before a holiday or vacation.

Wrap up everything in one meeting if possible. Have the last paycheck ready. Get back keys, clothing, papers or any other co-op property in the employee's possession if you can. If you must wait, hold on to the last paycheck until all co-op property is returned.

5. What others needs to know

You take a risk when you share with other employees the real reasons for a co-worker's dismissal. If the information becomes public and you can't substantiate your claim, you could be sued for defamation of character. For example, you should never post a notice about a firing where co-op shoppers or other members of the public may see it.

On the other hand, employees naturally tend to feel insecure if someone is fired for no apparent reason. They wonder, "Will I be next?" And the rumor mill, in the absence of accurate information, could come up with much worse scenarios than reality. In my experience, workers will behave rationally when given the whole picture and treated like adults. They can understand the need for confidentiality and they appreciate being informed, even though they may not like management's decision.

The most effective way to communicate sensitive, emotionally charged information is usually through short one-on-one meetings. In a small co-op, the general manager could talk to each person individually. In larger organizations, department heads would inform each person in their work group. A staff meeting called on short notice could provide a forum for people to express their feelings, although this would be awkward to schedule for most stores. A memo to each person's mailbox would be better than nothing.

In conclusion, a word of encouragement: When you know an employee should be fired, not taking action is to let an infection fester in the co-op. When done with firmness and sensitivity, taking definitive action, however painful, is to start a healing process.

See other articles from this issue: #037 November - December - 1991