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• failing to ask whether the subject employee was properly trained for his job, or whether the company had any checks or balances in place to prevent the employee's error.
No. 4: Is termination a proportionate response? This is the most important question to ask. In legalese: Is termination imposed on the employee related to 1) seriousness of the proven offense; 2) the employee's past record; and 3) his length of service? Here is the English version: Does the punishment fit the offense?
How do we decide this? Ask: Are there mitigating factors? Is the conduct an aberration? Does the employee express true remorse and indicate that the conduct won't reoccur? If the answers are "yes," then exercise what I call "proportionate compassion" and do not terminate.
Of course, there are offenses for which an employee should be terminated: no second chance, no write-ups, no counseling. These decisions are usually conduct-based as opposed to performance-based. If an employee, after a review, says, "I don't care. I will continue to do what I want," it's game over.
My mother taught me that "people never change, they only reveal themselves." Sad, but true. Or, as Oprah Winfrey put it, "When people show you who they are, believe them." When they do, the decision makes itself.
No. 5: Are the managers hesitant to terminate? Why? Sometimes managers are not hell-bent on firing an employee but rather on keeping him despite misconduct or performance issues. Why, you ask? For the all-too-human reason that the employee is the star of the sales department or would be too hard to replace.
These are not good reasons to spike an otherwise righteous termination decision. They are examples of unethical conduct by a manager: putting his needs ahead of the needs of the organization and its greater good. As a client told me: "If I ever find myself in that situation then the employee owns my company, not me."
Most people want to make the right decision as well as the moral one. The two are not mutually exclusive. Ask these questions and the decision will proceed from "ready, aim, fire" (doing the right thing), not from "fire, ready, aim," which leads to something else all together.
Michael P. Maslanka is the managing partner of the Dallas office of Constangy, Brooks & Smith. He is board certified in labor and employment law by the Texas Board of Legal Specialization. His podcasts and "Work Matters" blog can be found at www.texaslawyer.com. His email address is mmaslanka@constangy.com.
