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Firing an Individual for Poor, but Undocumented, Performance

Oct. 7, 2017

In some situations, an employee may become undesirable to retain in the current position. However, an employer may not have documented the poor performance and may be hesitant to terminate the employee due to fear of litigation. Due to this real concern, it is important to handle poor performance termination issues with care.  

Consult Employment Policies

Employment policies may contain information about how to tackle a poor performance termination. It may declare that all employment is at-will and that the employer can terminate an employee for any reason. The employment policy may discuss poor performance and a series of progressive warnings that can result in poor performance termination. Many of these policies include discretionary language, such as stating that an infraction can "lead to discipline, up to and including termination." The existing policies may provide guidance and the proper procedure to implement the poor performance termination.

Termination Options

Even if poor performance has not been documented, the employer may have a few options. He or she may choose to eliminate the position entirely due to not having the results that he or she wanted. However, if the employer later recreated the job, it could open itself to potential legal liability. 

Another option is to offer a severance package to the employee. This package often gives the terminated employee monetary compensation and other benefits so that he or she has more time to find a suitable replacement job. This package is often provided in exchange for the separated employee waiving any claims against the employer.

Even if the employer has failed to document performance problems in the past, it can start to do so immediately. This strategy can produce the documentation that the employer desires to support its decision to terminate the employee because of poor performance. 

If the employee commits a serious infraction, the employer may even decide to issue a final written order to the employee. This may occur even if it is the first time that the employee has been disciplined. In some instances, poor performance may be coupled with other transgressions, such as attendance problems, attempts to make a superior fail or failing to complete work as assigned. Employers may gain leverage by combining a warning for poor job performance with a warning for poor conduct.

Employers should review their options with a professional human resources management firm so that they can receive neutral and professional feedback. They can learn about ways of resolving the issue while protecting their business. 

Planning for the Future

To avoid this problem from arising in the future, employers can take steps to minimize liability. They can start by reviewing their policies to ensure that they provide proper remedies to the employer. Ensuring that the employment handbook states that employment is at will is also important. Policies may be updated to provide for a progressive series of warnings. Employers can train supervisors to document a history related to poor performance and discipline manners so that future employment records are documented. 

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Cite this article: Lynch, N. (2017). Firing an Individual for Poor, but Undocumented, Performance.