Documentation That Makes the Case The Employee Deserved to be Fired

As an expert witness (qualified in Court in management best practices, HR, and workplace issues), I’m often handed documentation by attorneys or employers who ask, “What do you think? Will it convince a regulatory agency or jury this employee needed to be fired?”

My most frequent answer: “this documentation doesn’t make the case.” Here’s why.

It doesn’t convince

Many supervisors confuse their opinions with facts. Their documentation consists of statements such as “he didn’t show initiative,” “she demonstrates a poor attitude,” “he doesn’t play with others.” While those statements provide the supervisor’s view, they fail to convince.

Well-written documentation provides the facts that will lead a third-party to reach the conclusion the supervisor holds. For example, “When Tish came to the staff meeting 45 minutes late, she folded her arms across her chest and closed her eyes. When asked for her thoughts about the topic under discussion, she asked, “How the f— should I know?” When you read those specifics, does a paint a picture of Tish stronger than “Tish has a bad attitude”?

It’s overdone

Fairness matters. Well-done documentation demonstrates fairness by providing specifics concerning what the employee does well, along with the areas in which the employee needs to improve. Overdone documentation that portrays an employee as worthless is as hard to swallow as an overdone steak. No employee is all bad, particularly not one who’s worked for an employer for more than a year.

A third-party reviewing documentation can also tell when a supervisor writes a year’s worth of documentation in one sitting to make an “after the fact” case for why an employee was or should be fired. Even when a supervisor uses different pen inks and handwriting, the documentation reads phony.

When one of my client’s supervisors lets me know, “this employee needs to fired but I haven’t done the necessary documentation,” I suggest that the supervisor preface the documentation with, “On this day, I reflect on the following situations that have occurred during the past four months.” The supervisor can then include the details without appearing dishonest.

It focuses on perceived causes rather than actual performance problems

Supervisors occasionally write, “You don’t care,” “your performance slid after your divorce and appeared to result from a lack of focus” or “you didn’t try.”  Generic statements fail to provide facts. Further, employees perceive labels and judgments concerning their personal lives as attacks. Attacked employees argue and attack back.

They descend to the level of petty

When many problems riddle an employee’s performance, effective disciplinary or performance review documentation focuses on significant issues. When supervisors document every small problem, it can seem as if they’re “out to get” the employee.

When a regulatory agent or a plaintiff attorney in a deposition challenges the supervisor who wrote about small problems, the supervisors look petty. Worse, the employee can often provide proof that other employees had these same small problems but received no discipline.

A supervisor can always make it clear that more examples exist by writing, “the following three examples demonstrate the many team interactions that violated our code of conduct.”

Hedging

Occasionally supervisors make hedging statements such as “it would appear you didn’t understand the protocol.” These uncertain statements make it appear that the supervisor lacks facts. Instead of making allegations, supervisors need to drill down to what leads them to draw that conclusion, such as “when you did ‘x’, you violated the protocol.”

Backfires

Supervisors need to be careful not to write documentation that creates liability for their organization. For example, if they label an employee’s offensive behavior as sexual harassment, the harasser’s victim may use that documentation to make a case against the organization. Instead, the supervisor can write “your behavior was unacceptable and inconsistent with our harassment policy.”

If a supervisor in a medical clinic or an architectural or engineering firm writes that the employee’s work was “substandard,” this description could backfire if the employer later becomes involved in a malpractice or other lawsuit, with a plaintiff attorney noting, “This employer’s own supervisor agreed the company’s work fell below standard.”

Documentation that makes the case

Effective documentation outlines what the employer expects from the employee and provides facts that show the employee failed to meet that standard. It makes clear what the employer expects from the employee going forward and the consequences should the employee not meet that expectation. How does your documentation measure up?

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