My focus on wrongful termination is from the management/leadership perspective—not from the legal perspective (this website is for managers and leaders, not for lawyers).
For the most part, wrongful termination happens when the manager doesn’t have enough performance management dexterity (when dismissal is a consequence of the direct supervisor’s performance management insufficient competencies).
Here I will cover:
- Waiting too long
- Not waiting long enough
- Not giving enough feedback
- Ethical reasons
WAITING TOO LONG
Maybe the most common example of wrongful termination is when you have a low performer, you wait way too long to fire him, and after too many costs for the employee in question, for you as his direct supervisor, and for your organization, you finally decide to dismiss him. That’s wrongful termination.
If you give timely, ongoing, and constructive feedback to your direct report, if you coaching him, if you do what you need to do in order to help him improve his performance, if you have followed your company’s guidelines concerning how to deal with unacceptable behavior, and still serious performance problems persist, it is time to let your employee go.
If (and these are big “if”) you have given your employee a job description with crystal clear functions to guide him, if your direct report’s soft and hard skills perfectly match his job description’s functions, if you have set with him and given him SMART goals to guide him, if there are no obstacles that hinder his performance, and if you have truly helped him improve performance—and still—his behavior and/or results are unacceptable, for his own good and for the good of your organization, you must let him go.
When managers wait too long to make this move, there are disastrous consequences for the employee in question, for the boss as the direct supervisor, and for the organization as a whole.
Do your job, do what you need to do, and then move on. Nobody wants to face this situation—this is probably the most disliked task of all managerial tasks. But if you wait too long, the costs will be much higher.
Please Note: When you follow your company’s guidelines concerning how to deal with unacceptable behavior and you decide to terminate a low performer, make sure you keep written records on file (please ask HR for advice on this matter). You must be able to legally defend your decision, and for doing so, your best backup resources are your written records—especially if your low performer signed them.
When you have a low performer, you wait way too long to fire him, and finally you decide to dismiss him, that’s wrongful termination.
NOT WAITING LONG ENOUGH
The opposite is also a common situation in organizations: You have a low performer and you fire her too fast.
When you manage the performance of your direct reports, it is your responsibility to do both: To create required competency, making sure they have the skills to do their jobs (performance improvement), and to help your people grow, making sure they are able to move on to more complicated tasks (employee development).
You cannot dismiss an employee before you have properly and thoroughly done your job as a direct supervisor—you must not fire an employee before you have taken the time to diligently coach her and to carefully guide her to performance success.
One of your main duties as a leader is to develop your people—this is your mandate as a leader.
If you have a low performer and you fire her too fast—this is wrongful termination.
NOT PROVIDING ENOUGH FEEDBACK
What happens when you have a low performer and you don’t tell him so? If you keep silent, if you don’t give him feedback, are you managing his performance correctly? Of course not, your direct report has the right to know where he stands, remember: Feedback is the breakfast of champions.
If you have a low performer and you don’t tell him so, and then you decide to fire him—this is wrongful termination (maybe this type of dismissal is the must unjust of them all).
When you downsize without any prior warning to the workforce, that’s wrongful termination too.
When there are companywide layoffs due to market changes or to the economy, the employees have the right to know as far ahead in advance as possible how the company is doing.
Call it what you will: Shared information, open book management, etc., but inform your workforce as transparently and as regularly as possible about what is on the horizon.
If you downsize without any prior warning, your employees may not take legal action against your company, but not informing your workforce about what’s approaching and suddenly telling people “good-bye” without any prior warning is a bad surprise, it is not ethical, and it is wrongful termination.
If for whatever reason you must let people go, you have to do what you have to do. Just tell your people ASAP.
Do your best to keep your employees informed with the latest financial information. If you do, when the time comes for downsizing, your people will be miserable indeed, but they will be in a stronger position to better comprehend the situation and behave accordingly.
When you fire someone for ethical violations; this is not wrongful termination.
When a worker incurs in any form of ethical or legal breach—such as robbery, telling a lie with unacceptable implications, or any other form of fraudulent behavior—the person must be fired on the spot, and this shouldn’t be a surprise to the worker or to anybody else in the organization.
Just make sure you do two things:
- First, document everything and keep it on file—ask HR for advice on this matter
- Second, make sure your workforce knows about it—it must be clear to every single employee that unethical behavior is unacceptable
The performance of your direct reports is YOUR responsibility as their direct supervisor:
When managers complain that they have unmotivated employees, when they complain that their workers don’t to do their jobs properly, when they complain that their people are just plain lazy individuals, these managers are falling into the role of the victim.
In 99 per cent of the times, if you do your job as a manager correctly, and if you manage the performance of your direct reports appropriately, you will build a strong team, you will rarely have to deal with low performers, and you will seldom have to dismiss anyone and/or do wrongful termination.
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This Plan will teach you three must-have leader tools to help you increase the performance of your direct reports, and to become the manager they want to work for. Check it out here!