PERFORMANCE-RELATED TERMINATION: PROCEDURE AND DOCUMENTATION
,If you have legitimately reached this drastic step of the disciplinary process, you have exhausted all the possibilities afforded by verbal, written, and final discussions. You have coached the employee, followed up, and found the employee entirely unwilling or unable to modify the problem behavior. You have documented the disciplinary process faithfully, using the proper formats and ensuring your documentation is clear and understandable. You have reached the point where you have no other choice. Anything less than the above means you have not reached this step legitimately and should reconsider your decision to terminate.
Preparation
When indeed termination is necessary, be ready to meet with the employee, and to document that meeting. Begin with these steps:
Preparation Steps
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1. Check your state’s rules for termination, and be prepared to follow those rules. For example, California and some other states require that you give the employee his or her final paycheck when you terminate.
2. Check your organization’s guidelines for termination, and observe them. If your guidelines set forth procedures which have not been followed, it is premature to terminate.
3. Secure a third party for meeting attendance. I recommend you never terminate without a third party, preferably another manager, in attendance. This individual helps you maintain control in a potentially volatile situation and serves as a witness to what was said and, just as important, what was not said.
4. Set a meeting date and time, and notify the employee. Make sure you set a date and time when the third-party individual is available.
5. Prepare good, thorough notes. As for any disciplinary meeting, your notes are valuable memory and documentation aids. Pay especially close attention to the specifics, noting the history of the violation in detail. Again, organize the notes well, so you can actually use them during the meeting.
6. Rehearse the material several times. Know the material and what you are going to say.
7. Develop a plan for the unexpected. As with any disciplinary meeting, ask yourself “What if ….” and come up with a plan for dealing with it.
8. Document. Be sure your third party records the employee’s comments. Your attention is best focused on the employee.
9. Prepare meeting room. Select a quiet, private office. Place chairs in the center of the room, away from the desk. Unplug or unhook the telephone just before the meeting. If any office windows face a work area, close the blinds.
Meeting Procedure
Do not view this meeting as one in which you must tailor your reasoning to the employee. Your reasons should be readily apparent if you and the employee have been working together for some time on changing the behavior. State your case, emphasizing past discussions, and end the session. For example:
We are here today because of your failure to meet the objectives we set in our verbal discussion on [date], our written discussion on [date], and our final discussion on [date]. As you know, in our last meeting we agreed that our next course of action would be termination. We have reached that stage.
This is not the time for education or motivation: that time is now past. The only exception is if the employee presents new information or facts that must be investigated. Due process will not be served until the investigation is completed. The process must be exhausted before termination.
Documentation
Your documentation needs for termination differ from those for earlier disciplinary-process steps, as you are no longer focusing your efforts on problem solving and performance improvement. For this step, you need to prepare a letter of termination in advance of your meeting with the employee. The department head, Human Resources, and your legal department should review the letter before you give it to the employee at the meeting. The letter should state the reasons for termination as spelled out in your previous verbal, written, and final discussions. This is not a time to get creative. Use clear, direct language to stress that:
• The employee continued the unwanted behavior
• The company expended considerable time and effort on trying to change the behavior
• The employee chose to ignore the company’s efforts and input
Place the emphasis on the employee and his or her non-compliance with the company’s effort toward positive change. Some sample statements:
• Your continued violation of the company’s work rules leave the company with no choice except to terminate our employment relationship.
• Your continued disregard for the company’s input on your continuing performance issue leaves us with no choice except terminating our employment relationship.
• Because of your flagrant disregard of our prior discussions, you leave us with no choice except termination, effective immediately.
• Because of the extreme and serious nature of your actions, you leave the company with no choice except to terminate the employment relationship.
• The company has met with you on several occasions to discuss and assist you in changing your work behavior. You have failed to meet the mutually agreed on goals we set, which leaves the company with no choice but to terminate the employment relationship.
The sample termination letter on page 120 shows you how it all comes together. Note the continual reference to the employee and his or her refusal to change. This emphasizes the employee has made a conscious decision not to comply. As I mentioned earlier, a manager can only provide the roadmap to change and help the employee reach the destination; the employee must want to change and get to that destination.
Voluntary Termination
On occasion an employee may choose to resign instead of accepting termination. In such a case, ask the person to give the company a letter of resignation stating the reasons for the decision. The employee’s letter to you should include a statement acknowledging the employee’s desire to leave on his or her own volition. The company can also send to the employee a letter detailing the circumstances surrounding the resignation and confirming the resignation. Both methods help to validate the employee’s decision to voluntarily terminate.
A note of caution: Do not be lulled into believing you are “free and clear” of any problems from this point on. There is a doctrine called constructive discharge which states, in effect, that the company made the person’s environment so intolerable, the person’s only alternative was voluntary resignation. However, the company can use the employee’s letter to raise reasonable doubt and use it to counter any legal challenge by emphasizing choice on the employee’s part and arguing that working conditions were tolerable.
How It All Comes Together Letter for Performance-Related Termination—Sample
The company has met with you on several occasions to discuss your continuing performance issue.
Specifically, we met on March 3, and I issued a verbal; on May 7, and I issued a written; and again on June 29, at which time you were placed on a final. In each instance, we discussed in detail your failure to improve your overall rate of absenteeism. And in each meeting you gave me your commitment to comply with the goals we mutually established. In total, you have missed over 30 days of work, placing an undue hardship on the department and your coworkers. Since our last meeting, you have once again been absent, displaying a disregard for your stated commitment to change.
This continuing issue can no longer be tolerated. Your continued violation of the company’s work rules leave the company with no choice but to terminate our employment relationship.
Obviously, you do not validate the letter of resignation, as it is employee-generated; but you may want to record your acceptance of the resignation, in writing, at the bottom of the letter. Statements you can use include:
• Per your request, the company accepts your decision to voluntarily terminate your employment.
• Per your decision, the company will honor your request to voluntarily terminate your employment, effective immediately.
• After considerable thought, the company will honor your decision to voluntarily terminate your employment and accepts your letter of resignation.
• The company has spent considerable time and effort on working with you on your performance issues. Your decision not to continue working toward positive change is regrettable; however, we will accept your decision to voluntarily resign.
• The company will honor your decision to voluntarily leave our employment, effective (date). We wish you the best in your new employment endeavors.
If you choose this option, give the employee a copy of the letter with your statement on it.
Our final word of caution. If the employee submits a letter of resignation citing uncareful or improper conduct on the part of the company or fellow employees as the reason for his/her resignation, you should conduct a full investigation. It must include making contact with the employee to obtain his/her version of the events. Do not terminate until you are satisfied with your investigation.
Follow these rules closely. By ensuring confidentiality of the termination case and documentation, including counseling, you will help protect the company against unfounded claims of retaliation and defamation.
Rules of Confidentiality
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• File document where it is completely confidential but easily retrievable.
• Never give the documents to anyone inside the organization unless there is a legitimate reason for the person to see them.
• Never send the documents to anyone outside the organization unless it is subpoenaed. Always consult with your attorney before sending the information. If attorney approves, send only the requested information.
• Never answer queries on the terminated employee over the telephone or in writing. In most instances, provide no more than name, dates of employment, and job title.
• Maintain the documentation for a minimum of five years.
• Never discuss the reasons for termination with anyone who does not have a need to know about them.
You should develop a checklist to ensure the company follows a set protocol each and every time an employee leaves the company. It is especially critical that the record is properly stored and that all inquiries about the person’s departure are referred to the human resources department.
TERMINATION CHECKLIST
Present final paycheck.
Ask for identification cards, office keys.
Explain COBRA entitlements.*
Notify state employment compensation department.
Refer to Human Resources any external inquiries about the employee’s departure.
Notify insurance carrier.
Place documented reason for termination in employee’s file, along with all other documented issues.
Place complete employee file in record retention for storage.
Notify security checkpoint(s).
*COBRA (Consolidated Omnibus Budget Reconciliation Act) protects insurance coverage for a specified length of time.