Illegal dismissal is a growing litigation area in Labor Law that employers need to be aware of every time they terminate an employee. Many employers are reduced to penury out of a wrongful act of dismissal.
Company Rules and Regulations
The first step in avoiding litigation is to have company policies or Rules and Regulations in place to address the most common employee work performance and discipline concerns, then have each employee read and sign that they received these policies and this is usually done upon engagement of the employee. The policies should outline the company’s disciplinary rules and outline what behaviors an employee can be terminated immediately for, such as theft, sexual harassment, and endangering the lives of other employees. I strongly recommend that you coach your managers and supervisors to use your company’s policies correctly in connection with terminating employees. Most companies will have one verbal warning, one written warning, and then termination after the next incident. The company should develop forms for both verbal and written warnings that supervisors can use. (If your company is unionized, there may be other steps involved in the termination process- usually outlined under the grievance procedure provisions in the Collective Bargaining Agreement)
Proper Documentation
Document any written warnings that you give erring employees. During the written warning, be specific about their work performance concerns and concentrate on what you expect to see as an improvement. For example, simple documentation will be like this: “Dear Marty, today is the third day in a row that you have been 30 minutes late to work. All employees are expected to be on time to work and I will be monitoring your future arrival times for the next four weeks. If further tardiness occurs, I will have to move on to the next disciplinary step”.
Extreme Caution
Observe extreme caution in terminating employees on minor offenses such as tardiness, absence without official leave, and other similar violations because recent decisions of the Supreme Court tend to favor the property rights of the employees rather than the disciplinary rules of employers. I, therefore, suggest that employers use lesser modes of penalties that are incorporated under your company rules and regulations for violators other than the supreme penalty of dismissal such as suspension from work without pay.
Observe due process
Once you have determined that discipline is in order, set up a meeting with the employee right away. Write a “show cause letter” immediately requiring the employee to explain in writing usually within 24 hours from receipt of the letter especially if the violation involves serious offenses such as Theft or Pilferage. For example, a show-cause letter will be like this: “Dear Jay, please explain in writing within twenty-four (24) hours from receipt of this letter in the matter of your involvement in the pilferage of company properties. In the meantime, you are required to attend the formal investigation on March 28, 2003, at 2:00 PM at the President’s Office.”
Keep it Private
Keep the investigation private and away from eavesdropping on co-workers and office gossip.
Assistance of Counsel
If possible, request the assistance of your retained counsel to personally conduct the investigation. With his trial skills, the lawyer may ask the employee regarding his participation or non-participation of the charges, who will then recommend the proper penalties corresponding to the violation. Write down the minutes of the investigation and have the employee and all personnel who attended the investigation sign the minutes.
Prompt Action
After the investigation, if evidence of guilt is strong, suspend the employee immediately for a maximum period of 30 days without pay on the ground that his presence in the company poses a threat to the properties of the company. Be sure to come up with a Decision terminating the employee or before the 30 days, otherwise, you will pay his salary after the lapse of the thirty (30) day period.
Notice of Termination
Be sure to notify the employee of your decision to terminate (Notice of Termination) him either personally or by registered mail at his last known address. Just causes for termination falls under Articles 282 of the Labor Code. Serious violations of company rules and regulations are also just causes for terminating an employee. If the employee refused to personally receive the Notice of Termination, you can make an annotation “REFUSED TO RECEIVE” at the back of the letter. Proceed to send a copy of the letter of termination at the last known address of the employee.