Termination without cause (sort of)

I have an employee who's dept/program has switched supervision about 60 days ago.  This happened about the same time that we were beginning our performance reviews. The employee receives an average performance review from his previous supervisor.  The new supervisor does not believe that is accurate and feels that this employee is a poor performer and not playing by his rules.  Although I have been told that this employee has been spoken to about performance I have not received anything in writing about the issues.  Now the supervisor is ready to fire him.  But wants to fire him without cause.  The approach he wants to take is to say there is no longer a need for his position.  I don't think this is going to go over well and is going to be very difficult to explain that their is no longer a need for his position and that the supervisor does not want him in any position.  I don't think that there is a legal issue here but wanted to see if any one else sees any potential legal concern or other concerns.  I think there is going to be some upset amongst a few employees who work in the same office with him.


  • 5 Comments sorted by Votes Date Added
  • Well, if you eliminate the position but then start looking for someone to fill it, that could cause trouble.  Why?  Because the reason for separation was "position eliminiation" but the position clearly wasn't eliminated because the Company immediately started looking for a replacement.  That makes it look like the elimination was a pretext for something else.  That scenario has played out against the employer as evidence of discriminatory animus.

    If the position is truly being eliminated, the only way this could cause a problem is if there is someone else who clearly needs to go but this person was chosen instead.

    Although "employment at will" permits termination for no reason, nobody really believes in "no reason".  That is, there's always a presumption of a reason.  So if you are going to fire someone for "no reason", be prepared to have that decision questioned.  For example, you may be asked about what were your reasons for not firing someone else for "no reason", which starts making it hard to have no reason.

    If it were me, I'd tell the new supervisor that they need to use the standard disciplinary process to get this person into acceptable performance standards or out of the Company and that the Company would not be taking any shortcuts.

  • There is one thing a good employee attorney likes in a courtcase - for an employer to say that a person was terminated for one reason, but then while under oath the truth comes out they were terminated for another reason.  You are better off telling the truth and taking your chances.  I agree with TXHRGuy that I would tell this manager that the performance review stands and if he is having performance issues now, to start the disciplinary documentation process to see if things improve or eventually terminate if they don't get better.
  • YIKES!! I agree with the two well spoken people above. Pretext for getting rid of an employee will bite the company in the 'gludes. Not only that but what kind  of message will that send to the other ees? Will it create respect for the manager or the company for that matter? What will happen to any feelings of loyalty?  If they can do that to him they will do that to me. All kinds of issues pop up in my head.

    If it isn't documented it did not happen. That has been adjudicated time and again in so many court cases. If a performance problem exist and it can be credibly documented (not a witch hunt) then start now and run the disciplinary process to its completion. Don't forget however, to include some type of remedial activity to demonstrate that the company attempted to assist the ee. Any good faith effort is always a plus.

  • Unfortunately I did not have a choice in the matter.  I was overruled.  Luckily the employee being let go took it ok.  I think there is a bit of a struggle for power here and all I want to do is make sure we don't get sued.  Oh well, I guess all I can do is warn them.
  • You will find that there are times in your career in HR, despite you giving all the evidence to make a move (or not make a move) in one direction, that you will be overruled.  You can just hope for the best that things will work out in the end.  I have had a couple of specific incidents in my career that have come back to bite the decision maker when he/she didn't want to listen to the advice I was giving them.  In one case, that still makes me laugh to this day, the person came back to me and said "Aren't you going to say I told you so?"  My response was "I don't have to, you just did."  Now I had a very good business relationship with this person and this was the one time that he choose to not take my advice, so I could get away with making a comment like this to him.   
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