The SHRM featured excerpts from an upcoming book by attorney and consultant Jathan Janova who “shares colorful stories” from his 25 years of experience trying to keep companies out of court.
One of the excerpts is called “Converting HR from Cop to Coach.” In it, an HR director called Mary had a meeting with Morton—a senior executive. The two discussed how to get rid of an employee considered deadwood.
The employee, Jerry, underperformed for decades despite performance improvement plans, coaching, and even alternative supervisors. Mary asked to see the documentation which wasn’t current, while Janova summarized Morton’s arguments in favor of terminating Jerry’s employment.
Janova then asked the four questions of a risk-analysis checklist:
- Would the termination be procedurally fair?
- Would it be consistent?
- Would it be substantively fair?
- Are there any complicating factors?
He pointed out that the termination would be substantively fair since the company had provided repeated opportunities to improve. However, Janova pointed out that there could be an issue with procedural fairness, since the documentation lacked adequate notice that Jerry would be fired.
Consistency could be another issue, since firing him would not jive with the disciplinary procedures listed in the company’s handbooks. Plus, there was a strong legal risk that Jerry would sue. He was 40 years old and likely to be replaced with a younger employee. However, to continue tolerating Jerry’s poor performance would come at a high cost to the business.
After this discussion, the company decided on a middle-of-the-read approach. They created an extremely comprehensive performance improvement plan. They met with Jerry and pointed out their many failed attempts to improve his performance.
Ultimately, they stated that it would be best for Jerry to find other work and offered him severance benefits. Otherwise, he would go on a “last-chance corrective action plan” and receive no severance benefits if he were terminated.
Jerry came back the next morning and took the severance. He signed a release and quietly left the company.
An unexpected benefit of this situation is that the managers now let the company’s HR department know much sooner about issues with employee relations. Knowing early gives a lot more flexibility, and there is no more tug of war between management and HR. Mary now makes risk-analysis a regular practice and functions more as a coach than a cop.