Brain’s termination is a critical decision that can affect Dataforce in several ways: it can lead to legal and managerial implications for the company. Before arriving at a decision Dataforce should prepare for consequences. Laws prohibit termination of employment in certain circumstances. These include any kind of discrimination against age, race, sex, religion, nationality, gender, physical disabilities etc. , Also, the reason for termination should be acceptable by the state laws. “A company may not terminate an employee if doing so violates a statute” (Goodkin, 2006). A company cannot fire employee for exercising legal rights such as voting.
In order to avoid future inconveniences, Sally should start with studying the background, checking the options available to Brain and finally taking necessary steps to foolproof the decision. Companies should be very careful while making termination decisions as employment laws are becoming stricter and, there is “a flood of employment litigation” (Greenwald, 1998). Law permits termination under valid causes. “If an employee violates the corporate rules of the employer, engages in misconduct resulting in serious losses to the employer, or commits a criminal offence, the employer may terminate the employee for cause” (Huawei, 2003).
However, law mandates the employer to communicate its policies to employees well in advance through written manuals. The manuals should be clear and should avoid ambiguous statements. Oral statements are also considered as contracts in presence of a witness. Perry gives a list of seven mistakes that employers make while terminating an employee. These include” Failing to put honest, including dangerous wording, making informal oral contracts, firing for bogus reasons, terminating for refusal to take a polygraph test, forcing a resignation by making working conditions unreasonable, terminating an employee for refusing to commit an unlawful act or violate public policy or for additional improper reasons” (Perry, 1991).
In Brain’s case the financial conditions in Dataforce can be used as a “just reason” for termination. But, Dataforce cannot advertize vacancy for the same post in near future if termination is made on the basis of cost cutting. Employee misconduct termination falls into two categories. The first is a serious offence where employee is caught tampering with important documents or stealing or fighting with colleagues. In such cases termination could be at once.
The employee must not resume on his work after misconduct. Relevance of facts and evidences should be checked before arriving at any decision. The second case is less severe and termination is the result of consequent warnings about misconduct. David mack states that while dealing with second situation the offender should be dealt with through what is called progressive discipline. After the first incident, a verbal warning should be given and a memo placed in the employee's file indicating the date and reasons for the reprimand.
Following a second offense - but not necessarily of the same type as the first - a written warning should be issued. In that warning, make it clear that further unacceptable conduct could subject the person to other discipline, including suspension and termination (Mack, 1999). Documentation forms an important part of any legal proceeding. “Whenever you have any adversarial dealings with employees--for example, disciplining or chiding them for undesirable behavior--make sure you keep notes. Also keep records of all counseling sessions that you hold with employees” (Zall, 2010). Proper documents should be maintained about employee conduct and performance.
The documentation should be timely and should state relevant facts. Documents that are compiled at a later point in time are not considered relevant. Employee performance record is another backup document that can affect legal proceedings. Poor performance is taken as valid reason for disciplinary action. Law mandates at least three notices to employees for poor performance before termination. Efforts should be made to help employees in improving their performance. This can include job rotation and training. Managers occasionally inflate their employee’s performance to maintain their motivation level.
This should be avoided as it can mislead the legal trial. “Line managers need to be trained to be able to give routine performance evaluations and to use these evaluations not only in establishing performance based compensation but as a tool for discipline” (Freedland, 1993). Sometimes employees themselves maintain their own performance record and can use the same in future. In Brain’s case this can become the weak link as his performance records state his past performance as satisfactory. Also, no clue has been given about past misconducts from Brain.