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Firing Right —Part 2

Denise Rondini June 28, 2012

The time spent investigating and documenting conduct  issues can protect you later.

By Denise L. Rondini, Executive Editor

drondini@randallreilly.com

It is never easy to fire an employee, yet sometimes it is necessary because of conduct issues that occur. This includes things like harassment, theft or threats of violence. According to Chris Durham, attorney at Duane Morris, these types of incidents must be investigated before any action is taken.

These incidents often are brought to management’s attention by another employee, although in some cases a manager may observe the behavior.

“It is important to have an investigation conducted by a member of the management team, preferably someone in the human resources department or at smaller dealerships where there is no HR department by the person who handles the HR function,” he says.

Immediately upon being made aware of the problem, document the complaint and do not delay with conducting the investigation. “A delay can lead to a number of problems. It can lead to a recurrence of the conduct and in the case of harassment of threats of violence it can lead to the harassed or threatened employee quitting and suing the dealership because you did not do anything about the problem,” Durham says.

Interview the complainant or the manager who observed the behavior first. It is important to gather the facts and identify any witnesses to the incident so you can speak with whoever else might have knowledge of the issue. Document those interviews as well.

“There are a couple of ways to do that,” Durham says. “You can document with interview notes, which I assume you would be taking. You can document with a file memo, which is drawn up based on the interviewer’s notes.”

Another option is written statements. “You can either have the witness being interviewed prepare a written statement or you can write one for the witness and ask him or her to review it for accuracy and sign it,” he says.

In cases where you think a witness has made allegations that he may back track on at a later date, Durham suggests getting them on the record with a written statement.

After interviewing the initial complainant, you will need to decide whether or not to interview the accused person to other witnesses first. “If you feel you have enough to go on  to confront the accused with, you may want to interview him or her first and get their take on it because they will provide some insight into the issue and also may point you to some other witnesses,” he says.

In instances where the complaint is vague or the complainant has identified a lot of witnesses, you may want to talk to those witnesses first so you have a fuller picture before going to the accused person to learn their side of the story.

“It is very important that you talk to the accused as part of the investigation,” Durham says, “and not just present them with your findings at the end.”

He adds, “This is true for a couple of reasons. It goes back to fairness. People want to feel they got a fair shake and have not been railroaded through the process. Secondly, the accused may be able to tell you some things that other witnesses didn’t tell you or frankly prove that they did not do anything wrong.

“You want to give them that opportunity, as opposed to jumping to conclusions. This is not to say that complainants often make up allegations, but sometimes they blow the circumstances out of proportion or there is a genuine misunderstanding that is important to address.”

Once you have spoken to the accused and any witnesses, circle back with any follow up based on what you learned. “It is not necessarily a one and done process,” Durham says. “You can speak to individuals more than once in the course of an investigation.”

At the conclusion of the investigation, the next step is summarizing your factual findings in an investigation memo. “This is going to be a key piece of your documentation going forward and ultimately you will rely on it to make any decisions as to discipline or termination.” It also will be very useful in defending against any action the employee brings regarding his or her termination.

Once you have summarized the findings and the reasons, you want to communicate those factual conclusions in writing to the employees involved so they know there has been a resolution as well as what actions have been taken to address the situation.

You do not want to give them a copy of the investigation memo, but rather provide them with a brief summary. “For example, in a sexual harassment complaint you could say something like, ‘We determined that so and so, who you complained about, engaged in conduct that violated our policies on anti-harassment. As a result of this, we have decided to take X action to address your concerns. Please let us know if you have any concerns going forward,’” Durham says.

He adds, “Most often harassment or discrimination allegations can be tricky and have the most potential to result in litigation if not handled properly.” In particularly volatile or sensitive circumstances, Durham says dealers may want to consult their legal counsel.

While we have explained what dealers should do in the case of a complaint, there are also some things they should not do.

“A common mistake is trying to treat the cause and not the symptom,” he says. “It is important in the workplace setting to really treat the symptoms instead of the cause because ultimately it is the behavior or the performance that you are trying to correct and make sure does not happen again.

“You are not necessarily trying to fix a broken employee and if you go down that road you may encounter things you do not want to encounter because you could be exposing yourself to[future]  liability.”

Inconsistency in the process used and the documentation is another common mistake. “You need to be consistent and thorough in documenting your investigation because not only will that put you in the best position to defend against a claim if a terminated employee files one, but it also ensures you are treating similarly situated employees the same,” Durham says

In discrimination claims, the person suing is trying to prove they were treated differently than similarly situated employees of a different race of gender. “Consistently documenting and consistently following a process ensures consistent treatment of all individuals,” he says.

Finally, Durham stresses the importance of documentation. Communicating something verbally but not documenting it can cause problem if the terminated employee files a lawsuit. “If you communicate verbally but do not document it, in the eyes of the jury it probably never happened,” he says. “This is something that is important to remember.”

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