Firing Without Backfiring, Avoiding the Revenge of the Difficult, Fired Employee

The final revenge of the difficult, fired employee. You’ve hesitated to fire him, you’ve given him chance after chance, but he’s not getting better. In fact, he’s getting worse, and so is the situation.

You owe it to your other employees, who consider this employee toxic or carry his shirked workload burden, to bless this employee out the door.

Unfortunately, you then make a critical mistake that results in a painful payout to this employee. If you want to fire without backfiring, you need to pay attention to:

• The doctrine of good faith and fair dealing;
• The guardrails of just cause, and
• Ask yourself 22 questions.

If you’d like to fire an employee without backfire, you need to consider good faith and just cause, then ask yourself twenty-two questions.

Good Faith

Courts in multiple states uphold the doctrine of good faith and fair dealing. When an embittered fired employee seeks revenge, they regularly allege their manager fired them unfairly and sue.

The manager then counters this argument, producing stacks of documentation supporting the termination decision. The judge reviews the documentation and grants the employer a summary judgment against the employee. End of lawsuit.

Not so fast. When reviewing the briefs filed by the employer and terminated employee’s attorneys, if the judge sees potential evidence the manager acted unfairly or suspected the manager was “out to get” or tried to make a case against the employee, the judge rules that the case needs to be resolved by a jury trial, because it involves a “fairness” question.

The bottom line for managers is that regardless of how much you’d like to strangle a problematic employee, you must treat every employee with absolute fairness up to and throughout the termination process. Ask yourself, would a neutral third party consider you fair?

Just Cause

You can avoid making a firing decision that backfires by observing these seven just cause guidelines:

1. Give the employee fair warning that a problem behavior could result in termination.
2. Ensure that the problem that results in termination is fully job-related and doesn’t involve a manager’s views of the employee’s off-the-job behavior.
3. Investigate the facts and fully consider an employee’s potential “case.”
4. Conduct the investigation fairly and without bias.
5. Have sufficient facts to justify your termination decision.
6. Ensure that similar employees involved in similar past situations were treated in the same manner as this employee.
7. Ensure that termination is an appropriate response to the behavior (and not overly, unfairly harsh).

22 Essential Questions

When our clients ask us to review the potential firing of an employee, we ask them to answer 22 questions before making their final decision.

Problematic answers to these questions don’t mean you can’t fire the employee, but may suggest you need more documentation or to involve a skilled employment attorney.

Here are the questions to ask yourself:

1. Do your employee’s recent performance evaluations support the discharge? Or has your employee one or more performance reviews that establish them as meeting or exceeding expectations? If so, what has changed and would a neutral third party consider the employee’s recent performance as justifying a termination?
2. Has the employee recently received a raise, bonus, or promotion? Even if all employees received a raise and this employee received a smaller raise than others, a jury or other third party may wonder why an employee received a raise or bonus and was terminated within the same year.
3. Have you clearly notified your employee of the problem behavior or performance deficiencies? Have you given your employee a reasonable opportunity to correct the problems?
4. Have you warned your employee that his or her job is in jeopardy?
5. Have you sought out and considered the employee’s side of the story?
6. Do you have adequate documentation to justify the termination?
7. Have you followed your usual disciplinary policies and procedures? If not, do you have justification for not following them?
8. Do you have specific examples of your employee’s shortcomings that would convince a neutral third party?
9. Does your employee’s record support the termination decision, or does the employee’s long-term history with you argue for giving this employee one more chance?
10. Could you make an alternative decision, such as transfer or reassign the employee?
11. Could you negotiate a resignation? If so, would this employee sign a waiver releasing the employer from liability in exchange for an enhanced severance package? This “insurance” might be worth it to prevent a litigation battle.
12. Is terminating this employee consistent with how you’ve treated other employees in similar circumstances?
13. Could terminating this employee appear retaliatory because the employee has protested discriminatory treatment or engaged in a protected activity (such as protesting a safety violation) within the past several months? A neutral third party might consider the timing of your termination decision retaliatory simply because it occurs so soon after an employee’s protest.
14. Is your employee a member of a group protected against discrimination due to age, race, sex, or another characteristic?
15. Will a neutral third party consider the reasons you’re giving for termination the real reason or see them as a cover-up or pretext for an underlying discrimination or unfairness?
16. Is your employee about to receive pension vesting? If so, a third party might assume the employer intended to avoid paying earned benefits.
17. What is your assessment of the temperament and judgment of the employee’s supervisor and how will s/he appear to a neutral third party?
18. Do you have key witnesses to the employee’s problems and can you rely on how they might testify?
19. Have you thoroughly and carefully investigated all pertinent facts?
20. Does this employee have a litigious personality or a history of litigation?
21. If a neutral third party looks at all the facts, would this person agree that the employee deserves termination?
22. Has everything related to this problem been properly documented?

Do you have an employee who deserves to be fired? To the extent you can, bullet-proof your firing decision by putting it to the test of good faith, review it against just cause, and answer 22 hard questions.

(c) Lynne Curry 2022

If you like this post, you might find this next post on how to conduct the termination interview useful https://workplacecoachblog.com/2022/10/how-to-terminate-an-employee-surviving-the-termination-interview/.

Note: an earlier version of this article appeared in Solutions: 411/911: Answers & Revelations for Workplace Challenges and Firefights, https://amzn.to/3ueSeXX. If you are more interested in how to turn around a talented employee worth saving, you’ll find chapter 7, “Pressing the Reset Button,” from Managing for Accountability, https://bit.ly/3T3vww8.