Termination for Cause

Some Important Considerations
Ronald F. Smedley
This article provided by the Engstrom Institute

In today's morally relative society, understanding the legal guidelines for terminating employees for cause has become increasingly confusing. And for Christian leaders the decision to terminate a believer can sometimes raise theological as well as legal questions—questions such as: "Should I just let God deal with him?" and "How much is enough before I react to the problem?"

As Christian leaders, we're to treat all people the same, as God's children. We must exert dignity, respect, compassion and integrity. However, like Jesus, we are also to treat people differently when they are poor stewards of their given responsibilities. On the job, this can include discipline, up to and including termination.

Following a termination, there's no way to guarantee an ex-employee, even a Christian, won't sue their employer. However, through a display of good character, coupled with sound procedures, a leader can allow the employee to maintain his or her dignity throughout the discipline/termination process and, in turn, lower the possibility of litigation.

Below is a list of considerations to follow when faced with terminating an employee. This list is not meant to be exhaustive, because no checklist can possibly anticipate all patterns of behavior. Still, if followed, this should help reduce the risk of legal exposure for you and your organization.

General Considerations for All Terminations

• Does Human Resources concur with the "progressive process" you followed?
• Is there an implied ("clean" personnel file), verbal ("be with us as long as God will allow"), or written contract in question?
• What is the employee's tenure? If the person is a long-term individual (10+ years), do you "owe" him or her some special consideration?
• What is the effect of the termination upon the morale of the organization? What will you do if morale is an issue?
• Does it appear, if applicable, that the employee's "protected class" has anything to do with the termination decision?
• Has a thorough investigation been conducted, so that the decision is based upon facts and not perception, hearsay or speculation?
• Are there extenuating circumstances, case law, or other factors which justify a lesser penalty?
• Is the decision being carried out in a timely manner?
• Is this action consistent with prior incidents of a similar nature?

Disciplinary Termination Considerations

• Was the disciplinary rule known to the employee? How do you know this?
• Was the practice displayed by everyone consistent with the rule?
• Have appropriate progressive disciplinary steps been followed (verbal, written, suspension, etc.) while treating the employee justly and fairly (per the law)?
• Is all the discipline documentation orderly and timely?
• Did the employee have an opportunity to take constructive action?
• Is your progressive discipline viewed as a procedure and not a policy? A procedure can be changed (it"could or would" occur), however a policy cannot be changed (lose your at-will status).

Performance Termination Considerations

• Were the job description and standards accurate and clearly relayed to the employee?
• Was the employee not only told of job deficiencies but coached, within a timeframe, in how to improve and meet the job standards?
• Did the employee ask for help and, if so, was it denied (based on the attitude that "he or she should know how")?
• Is the articulated reason for the discharge the real reason or are there any "hidden agendas"?
• Is the area of deficiency one that can be objectively measured, or are the criticisms subjective in nature (bad attitude vs. not doing job)?
• Is the unacceptable behavior documented well through specific verbal and written counseling sessions?
• Does the employee's personnel file support the termination (or did the employee just receive a merit raise)?

The Termination Itself

• Will the termination be conducted in private (it should be)?
• Will a HR representative be your witness for the termination (a witness is necessary)?
• Have you made sure the supervisor conducting the termination is prepared to be calm and factual?
• Does HR have all the paperwork, checks, etc. ready to proceed?
• Do you have a list of items the employee needs to return to the organization?
• Are you assuring the termination meeting will be free of interruptions?
• When will the termination be given (try to avoid mid-week)?

It has been said that the best termination is one that doesn't have to occur. However, if faced with having to terminate an employee, display good character and quality methods for a dignified and smooth process. Still, when in doubt as to your next step, contact your legal counsel or HR consultant to share the issues so you can proceed as a good steward to both your employees and your organization.

Ronald F. Smedley is president of Synergistic Resource Associates in Placentia, CA a full-service human resource/development consulting firm centering on the needs of the small to medium sized employer. Visit www.sraonline.net for more information.