Some of you may have heard about disgruntled employees taping phone conversations of their discharge and mentioning them on social media to show the unfairness of their treatment. It is a fact of fundamental human instinct that whatever the rights and wrongs of an employee's termination, the manner in which an employee is terminated or how they are treated is critical. In one such social media post, an employee was fired in a summary call with two people she had never met before and for reasons that were never explained and seemed unfair. It is a fact that few things matter more to people than fairness. Questions of fairness arise everywhere in the workplace, not just when people are fired, but also who gets hired or promoted, who gets the credit when things go well, and who get the perk of the nice workstation by the window. There has even been an experiment that a small group of employees will reject a money bonus because of the unfairness of the distribution, even if it means none of them get any money. Apparently, a fair share matters more than free money.
No termination or layoff will feel fair if it is too impersonal. Promotions may not seem fair if others did not seem to have a fair chance in the opportunity. The fairness is sometimes difficult for managers to determine, but even if people differ on what counts as the right outcome, they can usually agree on what makes for a fair process.
Fairness is not only necessary for employee satisfaction purposes, but for legal purposes. As employment lawyers know, any case going to a government administrative agency, jury, or even a judge, will be influenced by the fairness and logic of the employer's actions. For example, if a jury feels an employee was unfairly treated in termination, there is a likelihood that the jury will rule for the employee in spite of the legal technicalities. On the other hand, if the employer follows a fair protocol in carrying out the disciplinary process, it will improve the employer's chances of winning the case even if the reasons for the termination are more questionable.
This writer is personally familiar with a case in which there was every reason for the employee to be terminated. Unfortunately, the Human Resources manager did not interview the employee about the incident, getting the employee's side of the story, before the employee was terminated. The labor arbitrator found that this act alone amounted to a denial of industrial due process. The arbitrator set aside the termination, and ordered the employee reinstated with back pay.
This writer believes that perhaps the single biggest mistake an employer can make is not getting the employee's side of the story before carrying out a major employment action. It not only shows fairness and due process, but often the employee makes admissions in the investigatory process that actually protect the employer. Even if the employee does not make such admissions, the employer knows the employee's side of the story prior to the termination. This is a far better way of getting an employee's side of the story rather than getting it later after a former employee and now plaintiff has legal representation.
This article is part of our April 2024 Newsletter.
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