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The Safest Way to be Fired

Updated on October 21, 2012
Is this boss firing his employee safely?
Is this boss firing his employee safely?


You would have to been born on another planet not to know that there are few things in life more frightening than the possibility of loosing your job. In good times and in bad times, any employee can have a mild panic attack just thinking about it. So, how can there be anything close to safe about this horror of horrors?

First, let us spend a little time defining our terms. There are numerous ways of loosing one’s job. One can be laid off or RIFFED (reduction in force in government) or have one’s job eliminated. But in this article we are talking about being fired, and, while being laid off or riffed have the same impact on the employee as being fired-the pay check and the benefits stop-they are not quite the same in all respects. Lay-off’s and riff’s have to do with the employee’s position and not the employee. The organization is saying that it no longer needs or can afford the services of the position, but there is nothing necessarily wrong with the employee holding the position. When one is fired the organization is saying that it needs the position but does not want the employee. People are laid off through not fault of their own. People are fired usually because of their own fault-something they did or did not do, but should have done.

While being laid off or riffed is better than being fired because the former makes the employee eligible for unemployment benefits and the latter does not and the former has less of a negative impact on the career of the employee, while the latter definitely does, being laid off is not safe, while being fired can be, depending on how one is fired.

I define safe here as having some possibility of winning an adverse action-a complaint, a grievance or law suite, against the organization because the employee alleges that the lay-off or firing was unfair. By this definition, lay-offs are usually unsafe because organizations have the unimpeachable right to decide if the services of any position are no longer needed or affordable. Employees usually cannot win an adverse action filed because of a lay of or riff. But being fired may be quite different.

Not all firings are created equal. Some are safer, at least as I am defining that term, than others. The following are a listing of the different types of firings and ranked from the most unsafe to the relative safest way to be fired:

The Most Unsafe Way to be Fired: Being Fired while on Probation

Most organizations of any size require new employees to undergo a probationary period of from anywhere between three months and a year. You might look at the probationary period as a “watch and see” period. It is really a check on the selection decisions of the organization to confirm that it made the right decision in selecting the new person for the job.

Some organizations take the probationary period quite seriously and carefully scrutinize the behavior and performance of the employee and carefully decide whether to make the employee permanent or not, while others treat the period rather routinely and decide to dismiss the employee only if he has made very serious mistakes or behaved in a totally unacceptable manner. The important thing about probation, regardless of how it is treated, the organization always has complete authority to decide if the employee will “pass” probation and become a permanent employee or be given his walking papers during or at the end of the period. Since the employee has no rights to grieve or file adverse action against the organization during the period, any such actions filed by the employee because he was dismissed is doomed to failure.

Second Most Unsafe Way to be Fired: Being Fired under Mandatory Discipline

In most organizations there are two types of disciplines that can be applied to employees by the supervisor and the organization. One is mandatory discipline and the other is discretionary discipline.

With mandatory discipline, certain actions or behavior by the employee are grounds for immediate dismissal. Such actions or behavior are usually specified in the human resource manual and in the employee handbook, if there is one. This category of discipline is mandatory because if the supervisor observes or detects any of these actions or behavior, he is required to fire the employee or turn the matter over to his superiors or to human resources for their action to dismiss the employee. These grounds for immediate dismissal may vary somewhat from organization to organization, but they are all considered serious enough to fire the employee with no questions asked and with no right of appeal. Commonly, some of these serious offenses will include the following:

· Lying on an application form or resume so as to misrepresent one’s background or qualifications.

· Being convicted of a crime

· Taking illicit drugs or, in some cases, alcohol on the job

· Stealing or misusing organization property

· Engaging in violence on the job

· Giving or selling company secrets to competitors

· Accepting bribes or gifts from outside contractors

There can be several others in this category of serious offenses, depending on the nature and philosophy of the organization, but the important thing is that mandatory firing is very unsafe for the fired employee there is little chance of successfully appealing the firing. The one and only possibility of successful appeal lay in how conclusive the evidence is for the guilt of the employee. If this evidence is flimsy, then the employee might have a successful adverse action. But baring that, appealing a mandatory firing is a waste of time and money for the employee, no matter how crafty his lawyer.

The Usually Safe Way to be Fired: Being Fired Because of Discretionary Discipline

Discretionary discipline, as the name implies, is up to the option of the supervisor to decide if and when to apply discipline for behavior or employee actions that are less serious and, therefore, not mandatory grounds for dismissal. Examples of such behavior or actions are frequently coming to work late, abusing breaks, using the computer or the telephone for personal purposes or being absent from the job too frequently.

If the organization has a human resources manual, it may proscribe specific disciplinary measures for specific offenses or it may proscribe that supervisors use gradual corrective measures to stop the behavior or actions. Gradual discipline means the supervisor should start with the mildest form of discipline and move gradually to more severe forms if necessary. This gradual process usually starts with the verbal warning. If the behavior persists, then the next step is the written warning, a copy of which is placed in the human resource file of the employee. Some organizations require the supervisor to issue two or more written warnings to the employee before moving on to the next. In some organizations the next step is suspensions without pay for a specific period of time. In many other organizations suspensions are considered an unnecessary exacerbation of the absenteeism problem and allow the supervisor to move to the last step, which is firing.

Being fired under this category of discipline is often safe for the employee because many bosses simply do not know how to properly boss or how to properly manage their employee’s performance. They, therefore, apply discipline in ways that make it easy for the employee win adverse actions against the disciplinary action. The following are the common mistakes bosses make in applying discretionary discipline:

· Some supervisors may jump the gun and attempt to fire the employee without going through a gradual disciplinary process. The employee will win in this case every time.

· Many supervisors who use the gradual disciplinary process before firing the employee will not sufficiently document all of their efforts to correct the employee. Without sufficient documentation, the supervisor or the organization cannot prove that the firing was justified and fair.

· Even when the boss has done all of the right things in building the case and documenting the justification for the firing, the employee can still win the adverse action if the boss is not consistent in applying discipline. For instance, if an employee is fired for reporting to work late too frequently, he can win his adverse action if he can show that other employees do the same thing with no disciplinary action being taken by the boss.

The Safest Way to be fired: Being Fired because of Poor Performance

Proof that this is the safest way to be fired for the employee is the fact that in organizations that have protections for the employee, such as government and with unionized jobs, bosses are very reluctant to attempt to fire an employee because of performance. The experienced supervisors have many scars to show from successful complaints, grievances and law suites from employees that they have attempted to fire because their performance was not up to standard.

The reasons that firing an employee for performance reasons is safe for the fired employee in many organizations all have to do with the characteristically weak manner in which many bosses manage their employees:

· Many supervisors have no clearly defined and understood minimum standards of performance, so it is not easy to objectively measure employee performance to the point of telling the difference between performance that meets the minimum standards and that which does not.

· Even when there are defined standards of performance, supervisors frequently cannot prove that the fired employee’s performance was that much worse than the performance of other employees who were not fired.

· Even when the fired employee’s performance was clearly worse than that of other employees, the supervisor frequently can produce little or no documentation to show that he attempted to correct the employee or help him to improve his performance.

So, what is the bottom line here? It should be fairly clear. If one Friday afternoon your boss calls you in and gives you a pink slip because of your poor performance, do not walk, but run to human resources, the employee relations office, the union rep or the EEO office and immediately file the papers for your case.


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