Review and Investigation Procedure
The idea of an employee being fired on the spot for any offense should not even be a possibility. The maximum authority any supervisor should have is to suspend an employee pending further investigation. Immediate supervisors should be given the right to recommend termination but should not be permitted to fire an employee. Frequently, the immediate supervisor is too emotionally involved with the employee, and the termination decision, to be objective in reviewing the facts.
Also, supervisors frequently are not well enough versed in company policy and legal considerations to assess whether discharge is an appropriate penalty. It is advisable to have a management executive who is well versed in the legal considerations review all requests for termination. This person should have the authority to deny a termination request and make the denial stick.
In a unionized facility, the employee has the right to request that a union representative be present when the employee “reasonably believes” disciplinary action may be issued against him. The union employee does not have a right, however, to union representation when the meeting is simply to tell the employee what action has been decided upon.
For those of you who have an internal review, appeal, or grievance procedure, your handbook should designate that procedure as the employee’s “exclusive right of review.” If you do not have such a policy, consider implementing one because the presence of such a procedure could assist in portraying the plaintiff-employee to a jury as not being concerned enough with his or her job to even follow the internal mechanism provided by management Generally, an effective procedure should include:
1. A provision for the employee to put any complaint or problem into writing and sign it as a condition
2. Provide personnel department assistance to the employee to help put the complaint or problem
3. Review by one or more levels of management not involved with making the decision;
4. A written response by management within a reasonable period of time; and
5. A provision specifying that the review procedure is the exclusive means of raising and resolving formal complaints, grievance or problems.
Never make the decision to discharge prior to interviewing the employee. Nothing appears more unfair to a jury/arbitrator than to hear an employee testify that the company never asked for his or her side of the story. After the interview, tell the employee that no final decision on termination has been made and that the employee’s input will be given consideration. In a union setting, if asked, have a union representative present. Also, this interview can be used to allow the employee to better define his story. Again, use this as an opportunity to find out the facts.
Article by Loren K. Allison, attorney at law
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