CHAPTER 14
Summary Offenses (Immediate Discharge)

Terminations for first-time offenses are always challenging for managers. And while most supervisors assume that written warnings are the norm before terminating someone, not all offenses in the workplace are actually subject to progressive discipline. If someone steals from your company, the organization has the right to terminate immediately, even for a first-time offense. In fact, failure to do so could make your company appear irresponsible and set a dangerous precedent in terms of your ability to terminate future thieves. After all, it doesn’t make much sense to give someone a written warning after they steal cash from the register stating, “If you ever steal cash from the register again, you’ll be terminated.”

And as you might guess, employers have a significant amount of discretion to move to summary (immediate) dismissal for conduct-related infractions like stealing, fraud, embezzlement, and gross insubordination. When it comes to performance-related transgressions, in comparison, employers are typically expected to go through all the normal steps of progressive discipline as accorded under company policy and practice.

This chapter will address the tough conversations that are necessary when faced with cases of summary, or immediate, dismissal. In all cases, act reasonably and responsibly and avoid demonstrating contempt or “throwing them out on their ear.” Let cooler heads prevail, even at times when you’re exceptionally angry and disappointed.

Of course, you also have the right to look into pursuing the individual legally for post-termination reimbursement to the company, but that should be discussed with your legal counsel. At that point, you’ll need to determine whether any collection action on your part will be worth the expense of pursuing it and balancing that opportunity cost against the lesson you wish to give the perpetrator on principle.

Finally, note that “You’re fired!” is not a nice way to end anyone’s employment as it deprives the person of respect and dignity. Although you may feel that the employee has forfeited any right to respect and dignity by his or her egregious actions, keep in mind that firing people on the spot à la Donald Trump in The Apprentice is best left for Hollywood. When you suspect that a summary dismissal may be warranted, it’s typically best to send the employee home with pay on an “administrative” or “investigatory” leave so that he or she is off the premises and you have the time to investigate your intended action more thoroughly.

Terminating the individual over the phone while he’s at home can then take place, which provides you and your company with more safety while allowing feelings of anger and resentment to subside. Besides, you’ll make a much better record for the company if you place the individual on paid administrative leave before rushing to judgment, and courts and juries favor that type of corporate wisdom and restraint.

Scenario 89: Employee Theft

Employee theft is a multibillion-dollar business, with estimates ranging from $50 to $400 billion per year in U.S. companies. And of course it comes in so many forms: retail theft of clothing and apparel, funneling and diverting accounting funds away from the company and into a personal bank account, absconding with old computers that were meant for corporate donations, and even pilfering company charity donations and writing them off as if they were your own donation for tax purposes.

Whatever the form, employee theft should be addressed swiftly and definitively. Of course, you’ll always want to hear and document the employee’s side of the story before initiating any termination proceedings. Just remember that even if you’ve caught the individual flagrante delicto (that’s Latin for “with one’s hand in the proverbial cookie jar”), and even if you’ve caught the misdeed on tape and have witnesses willing to sign statements of testimony, you absolutely want to listen to the employee’s side of the story to ensure workplace due process. Strange things happen in the workplace, and sometimes what you see isn’t necessarily “what is,” especially if someone is being set up.

Let’s assume an employee who works as a janitor decides that he wants to take home a dozen computers that have been tagged for donation so that he can sell them for parts. The worker comes to work on a Saturday, let’s himself into your building, and loads his pickup truck with a number of Macs and PCs that your company was planning on distributing to the local schools. Unfortunately for the janitor, he doesn’t realize that the building’s surveillance monitoring system runs 24/7, and the security department is able to figure out first thing Monday morning who absconded with the computers.

The Solution

When you, the janitorial department head, are asked into a meeting with human resources and security to watch a tape of the employee driving away from the building with the computers, you first ask yourself why on earth he would have done that. Then you wonder if he was acting on someone else’s instructions (for instance, the information systems department) to remove that company equipment. You also wonder where all those computers are right now, since they were removed from the company property on Saturday, two days ago.

You meet with the employee and open up the conversation this way:

Mike, we have something important to speak with you about. There were about twelve computers in the information technology department that were tagged to be donated to the local schools. However, they’re missing, and IT isn’t aware of their whereabouts. Do you know where they might be?

Assuming Mike responds that he has no idea, then simply cut to the chase and lay the foundation for your argument:

It’s funny you should say that. We have film of you leaving the building in your pickup truck on Saturday morning at about 11:00 A.M. with a dozen computers in the flatbed. We could show you the film if you’d like. We need to know what’s going on, though, Mike. Did you remove them from company premises with someone else’s permission, or did you do that on your own volition? And where are those computers currently?

Assuming that Mike suddenly can’t remember anything, including his driving to the company on Saturday, letting himself into the building and the IT storage area, loading up the truck, and then driving off, then state the obvious:

Mike, in light of your not being able to account for the missing equipment, even though we show you on film removing it from company premises, we can only assume that you stole it. Please understand that you could be terminated for stealing and that we can pursue the return of the equipment legally. What am I missing, Mike? I want to give you every chance to explain what’s going on so that I’m not missing any important facts or assuming anything.

And low and behold, Mike has no answers. He begins to cry and apologizes for his actions. He confirms that he only took them because they were going to be given away anyway, and he makes so little money as a janitor that he needs to earn extra money to make ends meet. Besides, he reasons, a large and successful company like yours wouldn’t necessarily need the money from the computer proceeds that he needs just to get by.

At that point, after you’ve given him a chance to explain himself and also jotted down his “defense” and justification for his actions, you explain that he’s terminated.

Mike, I’m very disappointed that you chose to go this route. You’ve worked for our firm for two years, and I’m sure you realize that this was patently wrong. As a result, we’re terminating your employment, effective immediately. We’ll need you to leave the premises right after this meeting. We’ll then cut your final checks and courier them, along with any personal belongings that you have back at your desk, to your home later today. Is there anything else you’d care to say at this point? [No. I’m sorry.] Thank you for apologizing, Mike, and please take the opportunity to think about this and learn from the mistake you’ve made.

Plain and simple and without a lot of fanfare, this termination meeting is handled professionally and efficiently. You can then determine how to retrieve the stolen goods or press charges if they’re permanently lost.

Scenario 90: Selling Proprietary Products on the Internet

Every once in a while a product hits eBay or some other Internet website before it’s supposed to. In cases like that, there’s a good chance that an employee has engaged in an inside job to get premium pricing for something in high demand by the general public. This issue is so significant that in certain industries, it’s common for employees to be searched on a daily basis before they go home at night to ensure that no products have been stolen. It’s one thing to steal for personal use (like a sweater or T-shirt); however, it’s another when a prereleased product could jeopardize the launch of a new software system or movie premiere.

The Solution

A marketing manager at a movie studio notices that an upcoming video was already being sold on the Internet. Knowing how painstakingly movie studios time the release schedules of movies and home videos, she realizes that something is amiss. She promptly contacts her company’s human resources department, which in turn alerts internal audit, and the purchase is made. Internal audit then tracks a money trail that leads (not surprisingly) back to the work e-mail address of one of the studio’s home entertainment employees.

The marketing manager and human resources representative call this individual into the office and begin their questioning as follows:

Rhonda, we have to talk with you about something very serious that’s come to our attention. I’m sure you realize that taking copies of a soon-to-be-released video and selling it on eBay before its go-live date would be a very serious infraction that could result in immediate dismissal. Is that correct? [Yes.] Okay then, are you aware of anyone engaging in that type of behavior in our group or are you or have you been involved in anything of the sort? [No.]

Rhonda, I want to ask you again if you’ve been involved in any similar activities, because we have reason to suspect that you have been. [No.] Well, I saw that one of our new feature videos was being sold on eBay, and I suspected that someone internally in our department might have been responsible for it. That’s because no one else in the company would have access to the prerelease video copies that we keep in our department. I alerted human resources and internal audit, and with their permission, purchased the video from my personal computer. When we paid electronically, we were able to trace the purchase back to your company e-mail address.

At that point, Rhonda’s eyes open wide and she exclaims, “It wasn’t me. I’ve never been involved in anything like that. But Jennifer asked me for my log-on ID and password last week, and I gave it to her because she said she needed access to my computer for something. I don’t remember exactly what she needed it for, but since then, she’s been able to access my system as if she were me.”

The marketing manager and human resources representative then met with Jennifer to find out if she was indeed the culprit, and long story short, she admits to having pilfered the video and selling it online in advance of the company release date. The conversation with Jennifer ends as follows:

Jennifer, the fact that you would trick Rhonda into giving you her user name and system password so that you could collect funds for selling movie CDs before their release date is simply deplorable. You stole the material, jeopardized the release of the entire video, and tried to cover your tracks by tricking your coworker into giving you her work e-mail address so that she would get in trouble rather than you if the monies were ever traced back to the source.

Is there anything I’m missing in my summation? [No.] Fair enough. Please understand that you are hereby terminated. In addition, you’re not eligible for rehire in any divisions of the company. We also intend to contest any claim you make for unemployment insurance because of the egregious nature of this offense.

In most jurisdictions, theft, by definition, is excluded from unemployment insurance awards. Administrative law judges will typically support a company’s request to deny unemployment insurance benefits to an ex-worker who stole from your company.

And we’ll check with our business and legal affairs group to determine if any civil or criminal penalties or other remedies are available under the law for your willful violation of company policy in jeopardizing the release of this video.

We’ll need you to leave the premises right after this meeting. We’ll then cut your final checks and courier them, along with any personal items that you have back at your desk, to your home later today. Is there anything else you’d care to say at this point? [No.]

How sad to think that employees occasionally veer this far off the golden path. Still, when such acts of gross indiscretion occur, you need to be able to respond in kind. Oh, and as far as Rhonda, the coworker who released her user name and system password to Jennifer, she received a final written warning (even for this first-time offense) for failure to follow company policy regarding maintaining confidentiality of system passwords.

Scenario 91: Time Card Fraud

Time card fraud is a tough one: Employees often don’t realize that it’s not necessarily subject to steps of progressive discipline and can be interpreted as a summary offense. Depending on the nature of the incident, its severity, and the number of times it has occurred, a company certainly has the discretion to terminate once the offense is discovered. It helps very much if the company has a timekeeping policy that states that violations are not subject to the progressive discipline process and will result in immediate discharge.

To be clear, not every incident of time card misrepresentation must always result in termination. For example, if an employee showed on her time card that she worked until 5:00 P.M. one day last week but actually left the office at 4:00 P.M., that would probably be best addressed by a short discussion stating that you expect people to carefully log when they clock in and out (especially if it’s a first occurrence).

However, certain infractions could and should be interpreted as summary offenses. For example, assume that two nonexempt clerks go to lunch every day together at noon. However, when it comes time to return from lunch at 1:00 P.M., only one returns but does two swipes on two separate time cards—one for herself and one for her coworker. Others in the department soon catch on to this little game where every other day, one of the two employees takes a two-hour lunch while the other swipes back in for the first. These coworkers then report this fraud to human resources so that a “sting” operation of sorts can be set up: HR and security make note of the time the employees swipe back in from lunch, and the supervisor also tracks when both individuals actually return to their desks.

The Solution

A week later when the time cards are submitted, you notice that the first employee, Cindy, shows consistently that she took lunch from noon to 1:00 P.M. every day the week before. Not surprising, the second employee, Sarah, shows time cards that reflect the same misinformation.

You first call Cindy into your office, with either human resources or security present, and ask the following:

Cindy, I need to speak with you about something that’s come to my attention that’s very important, and I’ve asked Ashley from Human Resources to join us because this could be a potentially serious offense that could result in termination. I need to ask you about your lunches and your time cards last week. Was anything recorded inappropriately or inaccurately?

Cindy looks at you questioningly and states that, to her knowledge, all is accurate. You then clarify that coworkers witnessed her extending her lunch beyond 1:00 P.M. every other day that prior week, and you show her the time card report that reveals the falsifications.

Cindy ultimately admits that she was engaging in that game, apologizes for gaming the system, and then responds with shock when she is told that this is a terminable offense. She fully expected to be given a warning instead. You respond as follows:

Cindy, time card fraud literally steals time from the company. Yet the old adage “time is money” is relevant and real in this case: Time is a proxy for money, and stealing time is the same as stealing money. We don’t provide progressive discipline to employees who engage in theft of any sort, and I’m afraid we’ll have to terminate your employment, effective immediately.

When you later call the second employee, Sarah, into your office, you find that she unfortunately commits to the same wrongdoing. Both employees’ assumptions that they would only be disciplined rather than terminated if they were caught has little bearing on such a significant case that upholds your company’s timekeeping standards. And the standards that you uphold and the precedent-setting decisions to support them establish the practice that your company adheres to, which many employment lawyers will tell you is just as, if not more, significant than the policy you have written in your company handbook.

Scenario 92: Threats of Violence in the Workplace

We typically associate males with violence, but that’s not necessarily the case. Females can become equally aggressive in terms of threats or actual fighting, especially if they’re involved in gangs with ties that spill over into the workplace.

Generally speaking, companies have little discretion in responding to threats of violence. That’s because once the company is put on notice that one employee is threatening another, the company has an affirmative obligation to protect the threatened employee and provide for a safe and secure workplace. Should the company not take the threat seriously and injury or death results, the company could find itself liable for a host of violations, including negligent hiring, negligent retention, negligent infliction of emotional distress, and other tort claims.

Let’s assume that a nighttime security guard, Alma, threatens her supervisor, Denise. The threat comes in the form of a verbal threat where Alma tells Denise, “If this happened outside of work, I’d beat the sh__ out of you.”

When questioned about the occurrence, Alma admits that she made the claim and added that “she would be only too happy to take matters into her own hands.” You find out that Alma and Denise have known each other personally and disliked each other intensely before either started working at your firm. In addition, supervisor Denise did not make a counterthreat; she simply reported Alma’s threat to human resources.

The Solution

Now that you’ve completed the investigation and heard directly from Alma that she did indeed threaten Denise and also repeated her threat in your presence, you arguably have little discretion not to terminate immediately. In this case, you might want to educate Alma about the nature of threats in the workplace.

Alma, I don’t know the history of your relationship with Denise, and I also didn’t know that you both knew each other before you joined the company. You explained why you made the comment, and I understand that you feel that Denise doesn’t respect you. Truth be told, though, if you had any problems with Denise, you had the option of reporting the problem to your department head or to human resources. However, you didn’t have the option of threatening to take matters into your own hands or, as you shared with Denise, threatening to “beat the sh__ out of her.”

I assume you realize that this would probably get you fired both for threatening your supervisor and for insubordination. Does it shock you to hear me say that? [No.] Alma, you need to understand something that’s very important: Companies no longer have the discretion to retain employees who make direct or even veiled threats. This was definitely the case of a direct threat, but in a world where workplace violence gets so much attention and where lawsuits can be so punitive, companies just can’t afford to take the risk of retaining anyone who makes threats of physical violence or bodily harm.

Tell me again how you’d plan on handling this if it happened again at another company. [I’d go to human resources or the department head and let them know I was having a problem.] Correct. Okay then, we do indeed need to move to termination under these circumstances. I want to thank you for your service up to now and ask you to leave the building premises without returning to your desk or visiting Denise. We’ll forward your final checks plus any of your personal belongings to your home via courier.

In cases where workers simply don’t know how to handle their emotions and the “street side” of them comes out, educating them about how to handle future workplace situations is an important gift of sorts. After all, even though the decision has been made to terminate based on the current circumstances, you could at least help the individual learn from her mistakes. Alma should arguably be escorted off premises by security at this point to ensure the safety of her supervisor, Denise.

Scenario 93: Sexual Harassment

Sexual harassment may be a summary offense or it may be subject to steps of progressive discipline. As you can imagine, it depends on the nature of the individual’s conduct, the egregiousness of the offense, and a myriad of other factors. In Chapter 8, we addressed sexual harassment findings that generally did not rise to the level of immediate dismissal. In our current scenario, we’ll address a situation that does require summary termination.

Let’s assume you’re the COO of your company and learn that the administrative assistant in the operations department just came in to human resources crying and saying that she’s been “forced” to sleep with the vice president of operations for the past three months. The assistant tells human resources that she never wanted to develop an intimate relationship with her department head but felt that if she didn’t comply, she would face retaliation and ultimate dismissal. This is a typical case of quid pro quo harassment where sexual favors arguably become a condition of employment.

The Solution

Whenever you’re faced with this type of claim, get immediate help from your human resources department in addition to qualified legal counsel. These cases pose unusually serious threats to your company and should be guided by an attorney behind the scenes.

It’s not uncommon for the supervisor to defend himself by arguing that the relationship was consensual. The problem, of course, is that you’ll be facing a he said–she said situation where you (or a jury) can’t know the truth, so the victim’s allegations become the standard of judgment. In short, there’s very little defense that a company could proffer if one of its supervisors engages in sexual relationships with a subordinate, which is why a defense attorney needs to be involved early on in the game.

In this example, your meeting with the department head (we’ll call him Mark) might open like this:

Mark, I needed to meet with you because something’s come to our attention that requires immediate resolution. Dana, your assistant, apparently went to human resources this morning claiming that the two of you have been sleeping together for the past three months. Clearly, I can’t just take her word for it without hearing your side of the story as well, so would you please let me know what, if anything, is going on here?

As is often the case, Mark responds that they have indeed fallen in love and developed a physical relationship. He also states that he was planning on disclosing that to you, his supervisor, but hasn’t had a chance yet and has been thinking about how to best present the information. However, Mark assures you that the relationship is consensual and that he hasn’t engaged in any appropriate behavior.

You then remind Mark of his obligation to report such romantic relationships that develop between supervisors and their subordinates immediately under policy and procedure guidelines. Mark acknowledges that he was aware of those requirements but that the relationship has really been on again/off again for the past few months, and he wasn’t really sure if it would become serious in any event.

Finally, you inform Mark that Dana came to human resources in tears that morning stating that she feared retaliation for potentially rebuffing Mark’s advances that weekend. This Mark clearly denies, stating that this is all being taken out of context.

Your response should be very straightforward and direct: Place Mark on administrative, investigatory leave while you continue your investigation:

Mark, I have no choice at this point but to place you on investigatory leave with pay while I look further into this. I wanted to meet with you this morning to confirm that these events did indeed occur, which you’ve verified. However, I’ve got to let you know that your arguments that you weren’t sure if this relationship would last or how you would notify me don’t excuse your serious violation of company policy. I also need to let you know that this may result in your immediate termination. I’ll know more once we’ve had a chance to vet this with outside counsel. Please leave the premises and wait at home for my call.

Don’t be surprised if your attorney recommends that Mark be terminated immediately for breach of company policy and failure to disclose a romantic relationship with a subordinate. Mark’s immediate termination will help mitigate the harassment case that your company may face from the subordinate because it demonstrates that your company took the issue seriously and remedied it immediately on learning of the problem. Your call to Mark that night might then sound like this:

Mark, it’s Paul. I need to let you know that we’re exercising our right to terminate your employment for breach of trust and failure to follow the company’s policies that are clearly outlined in the policy and procedure manual and employee handbook. Furthermore, you might want to look into retaining your own lawyer, as our company deems that you’ve acted outside the course and scope of your employment in this matter, despite the training that you’ve received. We’ll have someone from human resources get in touch with you in terms of collecting your laptop, company ID, and the like. Do you have any questions that I can answer for you at this point?

Companies have little reason not to terminate under circumstances like these. Be sure to document the time of your call to Mark as well as his response—both in terms of what he says and the tone of his voice. Your attorney will then advise you whether a written letter of termination would be appropriate under the circumstances.

Scenario 94: Falsification of Company Records

Falsification of company records may be a summary offense, especially in the finance and investment worlds, where falsified signatures may ban a company from enforcing written agreements or collecting on claims. Let’s assume that a loan officer in the branch of a mortgage brokerage permits a borrower’s wife to sign documents in the borrower’s stead.

Although at first glance this may seem like an offense that should be subject to progressive discipline (i.e., written warnings that if this happens again, then the individual may be terminated), in reality most financial institutions have no choice but to terminate even for a first-time occurrence. Why? Because a dangerous precedent could be set if something less than termination were agreed to. After all, how would your company protect the integrity of its entire system if management allows someone to remain aboard today but then tries to terminate someone else three months from now for the same offense?

The Solution

As always, listen carefully to and document the employee’s side of the story before engaging in any termination discussions. And of course you’re under no obligation to terminate someone on the spot—placing the individual on administrative, investigatory leave after you’re heard his side of the story makes the most sense logistically in terms of how to handle a potential termination in most cases.

Here’s how you might initially respond, though, after learning from your branch manager that a loan officer (we’ll call him Peter) likely engaged in record falsification:

Peter, I met with Mike Walker, our branch manager, today, who let me know that he suspected that you allowed a client, Corrine Carter, to forge her husband Ron’s loan paperwork. Does this ring a bell to you? [No, not offhand.]

Mike suspected this might be the case when he saw Mr. Carter walk into the branch. Mr. Carter is an amputee, and when Mike saw him sign, he noticed that Mr. Carter’s left hand trembled significantly—enough so that Mike took notice. Mike checked into the notary log and saw that Mr. Carter’s signature was very bumpy and shaky, so Mike assumed that he must have been right-handed at the time he lost his arm. Here’s a copy of Mr. Carter’s signature in the notary log, and you can see how shaky and uneven it is.

Something funny happened at that point though. When he was looking through the file and reviewing the various documents, Mike saw that the Carters’ deed of trust had two signatures—Ron and Corrine’s, as was appropriate—but that both signatures were almost identical. If you look here at the deed of trust, you’ll see that Ron Walker no longer has a shaky and off-centered signature, and more important, it’s almost identical to his wife Corrine’s. So let me ask you the question again: Did you allow Corrine to sign off on her husband Ron’s paperwork? [Yes, I believe I may have.]

Okay, in that case, Peter, I’ve got to formally place you on an investigatory leave. I’ll have to speak with the Walkers and confirm this and do a little fact-finding on my own. To do so, I’ll need you to leave the company premises and not reach out to the Walkers or do anything else to impede this investigation. Your leave will be with pay, and as soon as I’ve completed my investigation, I’ll call you back. I have to tell you, though, that if this is indeed true, it could very well constitute a serious breach of company policy and could result in your termination. If you think of any additional information that you want me to consider this afternoon, please call me here in the office. Otherwise, I’ll call you by day’s end.

After your investigation, you learn from your clients that the loan officer did indeed permit signatures to be forged. Although he did this to save time at Mrs. Walker’s request, your mortgage banking firm has no choice but to terminate Peter’s employment. Your call to him at home that afternoon might sound like this:

Peter, I’ve spoken to the Walkers and confirmed that you did indeed permit Mr. Walker’s signature to be forged. Mrs. Walker explained it was at her request for various reasons, but as you know, forgery is absolutely forbidden in our company and in our industry for a myriad of reasons, and I’m afraid we’ll have to separate your employment at this point.

I’m so sorry about that, especially since you were trying to accommodate a client’s request. Still, as I’m sure you can understand, our company has no choice but to end employment in cases like these both for the precedent-setting value of the event as well as for the liability should the Walkers ever claim that the legal contract wasn’t binding. Thanks for your contributions to our firm over the past two years, and we’ll have someone from human resources follow up with you regarding the details surrounding your separation.

Short, clean, and to the point, you’ll have done your due diligence in ensuring that the forgery did indeed occur. By placing Peter on temporary administrative leave, you’ll have given yourself the time necessary to have your bank’s internal audit group review the infraction while allowing the human resources team to confirm that the termination was warranted. Just as important, you’ll have created a written record showing that you listened carefully to the employee and documented his version of the story before getting the necessary internal approvals to move forward with the termination. Well done.

Scenario 95: Insubordination

Insubordination is a conduct infraction that stems from one of two things: (1) intentionally disregarding a supervisor’s explicit directive or (2) demonstrating extreme disrespect for a supervisor, either in private or in front of others. Your knee-jerk reaction to an insubordinate subordinate may be to respond in kind (for example, by cursing back at someone who hurls profanities at you) or by terminating the person on the spot in front of his peers à la Donald Trump in The Apprentice— you’re fired!

In reality, though, insubordination may be subject either to progressive discipline or to summary discharge. A lot will depend on the circumstances surrounding the event, the employee’s prior history with the company, and in the egregiousness of the offense. Don’t rush to judgment, though: If immediate termination is the ultimate result, it would be better to make it a quiet and low-key event with the employee waiting at home while on investigatory leave rather than a “shoot-out at the O.K. Corral”–style conflagration in front of the whole staff.

In fact, when an employee appears to blow up and spew expletives at a supervisor in front of the rest of the staff, your best bet as the supervisor will be to end the meeting, dismiss the rest of the staff, and ask the employee to meet with you in private in your office. If you have a human resources department on site, ask that a member of the HR team join you to moderate the meeting. After all, no matter how much you pride yourself on your objectivity and fairness in managing others, once you’re a participant in the game, you can no longer play the role of referee and mediator. You’ll need an objective third party to do that, and human resources or another member of the management team can join you as the arbiter of the dispute.

The Solution

In the case where a subordinate “calls you out” in front of the rest of your team, meet with your company’s HR representative or some other third party as outlined previously and explain exactly what was said, including the language and tone of the message, whom it was said in front of, and what other body language was involved. Explain that you’d like their help at this point in terms of meeting with the offending employee and determining an appropriate company response.

For example, let’s assume you were holding a staff meeting and one of your team members suddenly stood up and exclaimed, “This is bull———! We shouldn’t have to do this again. We’re being asked to do double work because of your incompetence. If you knew what the hell you were doing as a supervisor, none of this would be necessary, and I’m sick of it!”

Explaining this to the third party and then inviting the employee into your meeting, you could calmly open up the conversation by asking:

Joe, I explained to Marlene from human resources what happened in the staff meeting. I wanted to invite Marlene to meet with us, though, so that she could provide an objective evaluation of the whole situation. I told her how I recalled your outburst happening, but I’ll leave it to Marlene to take it from here and learn your side of the story. I’ll leave you two alone at this point. Marlene, please let me know where things stand after you’ve concluded your meeting with Joe.

Marlene then meets with Joe, learns that he indeed said those things in a fit of rage because he believes that Paul is an incompetent manager, and then receives an apology from Joe for acting out of line. Regardless of Joe’s about-face, she places him on paid administrative leave and sends him home.

She later explains to you that the company has no choice but to terminate Joe for gross insubordination and explains that she will terminate Joe over the phone this afternoon. Yes, precedent should be reviewed (i.e., how your company has handled similar situations) in addition to Joe’s tenure with the company and protected status (e.g., age, race, and so forth) as well as any potential claim for retaliation based on prior events. Assuming, however, that you’ve never publicly humiliated Joe or engaged in similar behavior, you should be safe to terminate.

Let’s assume that Joe calls you the next morning to apologize; in that case, you might want to consider accepting his apology and explaining:

Joe, I don’t know where all the anger is coming from, but you need to know that such behavior can’t be condoned in the workplace. You were a longer-term employee and I haven’t seen this type of reaction from you under other circumstances, but understand that a company doesn’t have any discretion to waive termination for displays of gross misconduct. I was embarrassed, humiliated, and exceptionally disappointed that you chose to express your frustrations the way you did in front of the whole team. I hope you never do that to another supervisor in your career, and I hope that no member of your staff ever blindsides you that way.

In addition, just so you know, we’ll be very respectful of your privacy as far as the other staff members. I’ll hold a meeting with them today, letting them know that you’re no longer with the company, that we’ve treated you respectfully, and that any phone calls from prospective employers or headhunters looking for references will be referred to human resources, where only your dates of employment and last title held will be shared.

Finally, because this is not typical of your ordinary workplace demeanor, we as a company won’t contest your unemployment. That means that whatever you tell the folks at the unemployment insurance office in terms of why you left the company won’t be disputed. In fact, we won’t even return their call.

I wish you well, Joe, and I’m sorry things had to end this way. I hope that you can come to terms with whatever caused this outpouring of emotions in the workplace and will be able to avoid incidents like this in your future. Human resources will call you with more details regarding your separation from the company. Take care.

Notice that despite the employee’s exceptionally inappropriate behavior, the supervisor never escalated his feelings in public. Instead, he handled matters privately with the employee in front of a third-party witness, human resources. The fact that the supervisor didn’t react emotionally had significant bearing on the ultimate outcome of the case. If the supervisor had sunk to Joe’s level and engaged in a shouting match, then immediate dismissal may have been more difficult to justify.

Again, let calmer heads prevail, let respect rule the day, and remember that it’s all about the record. When facts speak for themselves and they’re very black and white, the company will have much more discretion and latitude to terminate as appropriate.