Viewpoint: How to Fire Someone for Poor--but Undocumented--Performance

By Paul Falcone May 11, 2017
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​Marilyn is a human resources director at a large construction company and is faced with an almost impossible task: Fire a director of operations with 13 years of tenure and no record of prior corrective action or negative performance reviews.

The reason for this untenable situation? The division general manager and the vice president of operations both want the director gone, albeit for different reasons. The general manager sees significant backups in production, primarily due to the director's failure to lead his team effectively. The recently hired vice president has heard that the director is "throwing him under the bus," telling anyone who will listen that he'll see to it that the vice president fails and is ultimately terminated for not knowing his job well enough.

Marilyn was already aware of the bad blood between the vice president and the director: The director had wanted that vice president role when it became available the prior year, yet the company opted to hire someone from outside who had transferable skills but lacked exact experience in the field. The director resented that he had to train his new boss in the nuances of the job and demonstrated his anger by expressing it to other members of the team on as many occasions as possible.

Marilyn reasoned that substandard job performance and inappropriate comments about the boss were valid reasons for discipline but that terminating someone over the age of 40 with no history of discipline problems would likely result in a lawsuit that could be difficult to defend. She shared her concerns with the general manager, both in terms of the potential cost of a failed lawsuit (per the employment attorney's estimate) and the six- to nine-month window of lost time and disruption for the rest of the team that could result from investigations, depositions, a hearing and ultimately a trial.

Still, no dice; the general manager was adamant that the director had to go immediately. Marilyn needed to come up with some options to spare the organization a lawsuit while maintaining a fair relationship with the director.

"It's not a matter of getting sued that's at issue," said Sam Sherman, employment lawyer at Tencer Sherman LLP in San Diego. "What counts is getting sued on your terms, not theirs. And in this case, a lawsuit filed by a director after 13 years of service with the organization and with no progressive discipline on file has risk." 

Option No. 1: The Position Elimination

The general manager suggested eliminating the position and laying off the director. He reasoned that would be the cleanest and quickest option, which Marilyn immediately recognized as a problematic strategy.

"Position eliminations only make sense if you have no intention of backfilling the role for at least a year, which is how long many states' statutes of limitations run for wrongful termination claims," Sherman said. That clearly wouldn't work because the company desperately needed to have someone in that director role—they just didn't want the incumbent serving in that capacity.

Option No. 2: The Separation Package

The general manager then instructed Marilyn to give the director of operations a separation package. He gave her budget authority to offer a nine-month separation deal, which is consistent with what the director would have received had his position been eliminated. However, Marilyn wisely responded that she had no leverage to entice the individual to accept a package. If he opted not to accept the company's offer or demanded more than nine months, she had no follow-up action plan to negotiate with. The general manager's response, "If he doesn't accept the package, then fire him."

"That path poses substantial risk to the company," Sherman cautioned. "First, if the director chooses not to accept a package now and the company retains him but fires him three months later, a plaintiff's attorney will likely argue that the company's ultimate decision to terminate him was the result of a pattern of discrimination that began when it offered the separation package. Further, if you terminate the director for not accepting the package now, then you've got a prima-facie wrongful termination claim on your hands that will likely be tied to age discrimination and any other protected characteristics under federal and state law, which have the potential to carry punitive damages."  

Marilyn is at her wit's end: The general manager shows no fear of a lawsuit and little regard for the director being treated respectfully in light of his many years of service.

Option No. 3: The Final Written Warning

"There's one fact in this situation that provides Marilyn with a lot more latitude than she realizes," said Kim Congdon, HR executive and former chief people officer for Fullscreen Media in Playa Vista, Calif. "Conduct infractions provide employers with much more discretion than performance transgressions in terms of issuing corrective action."

In the situation at hand, a written warning may be the logical progressive disciplinary step for the ongoing performance problems that the director is experiencing in not leading his team effectively or suffering under such a huge backlog of delayed projects. But a final written warning would be the logical company response to a director who is constantly "throwing his boss under the boss" by telling others that he'll ensure that the vice president fails and is ultimately fired for incompetence.

"With that final written warning in hand for conduct, combined with a written warning for substandard job performance, the company now has leverage in the game," Congdon said.

Marilyn keeps the general manager and vice president informed of her revised action plan and meets with the operations director to issue the final written warning as follows:

"We're issuing you a final written warning for misconduct and insubordination regarding your ongoing public comments about the vice president's incompetence and your willingness to see him fail and ultimately be fired. We're also issuing you a written warning for the ongoing performance challenges you're experiencing, as evidenced by the ongoing backlog of projects that are holding up our sales team from closing their business transactions. I know you don't want to risk losing your job after putting 13 years into the company because that could certainly complicate your future job search, and while I can't promise anything, I could ask for a separation package for you that would mirror what you'd get if your position were to be eliminated—nine months of pay plus continuation of benefits plus outplacement.

But that's strictly up to you. I'll support your decision whether you opt to remain with the company under the final written warning or request a separation package. I just want you to have some choices at this point and not feel like you have no options. You do have to be careful, though, because any further actions on your part that could be construed as insubordination or misconduct could result in immediate termination, and there won't be a separation package as a safety net. Why don't you sleep on it and let me know tomorrow what you decide and whether I could help with that separation package option?"       


The next day the director of operations returned to Marilyn's office and requested the separation package. He realized he wasn't happy in that role and hadn't been for the past year since he was passed over for the promotion to vice president. Further, he agreed that he couldn't risk being terminated for misconduct or insubordination because it could damage his chances of launching a successful job search. Finally, he felt the company was giving him a way out that preserved his dignity, especially since he would be able to craft his own message to his peers and subordinates about why he was resigning.

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"Going from zero to final written warning for a serious conduct offense isn't uncommon," Congdon said, "and provides the company with options it wouldn't normally have if the issues were solely performance-related." 

Yes, there was a risk that the director wouldn't ask for the severance package and might opt instead to remain with the company, despite the final written warning. But Marilyn successfully convinced the general manager and the vice president of operations that this was a critical record to have if the company was to enter into litigation. They agreed and allowed her to proceed with her plan.

With this clean result in hand, the general manager and vice president of operations were able to separate the director's employment immediately, while the director walked out the door on his own terms and in a position to heal the wound and move on with his career. Relative to the other options available, Marilyn is secure in knowing that she accomplished her mission of balancing the organization's needs while maintaining the director's dignity and self-respect.

Paul Falcone (www.PaulFalconeHR.com) is an HR trainer, speaker and executive coach and has held senior HR roles with Paramount Pictures, Nickelodeon and Time Warner. His newest book, 75 Ways for Managers to Hire, Develop, and Keep Great Employees (Amacom, 2016), focuses on aligning front-line leadership teams and on key employee retention. A longtime contributor to HR Magazine, he's also the author of a number of SHRM best-sellers, including 96 Great Interview Questions to Ask Before You Hire, 101 Tough Conversations to Have with Employees, 101 Sample Write-Ups for Documenting Employee Performance Problems and 2600 Phrases for Effective Performance Reviews.

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