Human resource management principles and practices

¶ … company may be faced with a number of problems concerning the methods used to both determine that Tom Kinder should be fired as well as the fact that he was even fired at all.

"The employer's right to terminate for any cause has been seriously constrained. Recent court rulings and discrimination legislation make employee termination a hazardous undertaking." (Paul 1993 ab)

Paul says that employers must take more care now, than they have previously in order to ensure that the individual being terminated is afforded his or her civil rights. Failure to afford them the opportunity to appeal the judgment can be a costly mistake, as time, effort and financial expenses can come into play.

Tom seems to have a number of issues that could be signs that he needs help, and in today's modern workplace environment, those signs are more than enough to cost the company some expensive penalties if management were to ignore them.

There are normally a number of defenses that an employer can present if being sued by an employee for 'wrongful termination'. Those three defenses are "1) the employee does not belong to the protected class (ie; is not legally disabled) and thus is not protected by the ADA; 2) the employee is not otherwise qualified, that is, the termination was justified because the employee could no longer perform the essential functions of the job, even with a reasonable accommodation; and 3) the employee was terminated for a legitimate, nondiscriminatory reason, one that was unrelated to his/her disability" (Kleiman 1998-page 193).

These are all reasons under the American Disabilities Act, which in the case of Tom Kinder could be looked upon as a disabled person, due to his deep depression after his difficult divorce five years earlier. It is not a far jump for him (or his attorney) to assert that the depression caused by this event was the primary purpose for the slackening off towards his job duties.

Management could, should and in this case did notice that he became "sullen, withdrawn, and argumentative with his supervisors." (Case study) What management failed to do was offer any assistance to Tom, nor did it attempt to bring Tom back to his previous state of mind (at least in regards to his employment). Because the company offered no help whatsoever and also failed to document any disciplinary actions taken against Tom, technically the company was taking a huge risk when it decided to terminate Tom's employment with no warning except for the one written warning issued 12 months earlier.

If management had been more consistent and more forthright in its efforts to both assist Tom, and in any case at least document management's efforts to get Tom back on a productive track, they would have been on a more solid footing when they decided to proceed in their chosen manner.

This is especially true concerning union employees primarily due to the fact that the union has negotiated with the company in good faith regarding the rules and standards of terminating employees, and how those rules and standards are applied and implemented.

When a union has negotiated a contract with a company, it is a good bet that the union has included in those negotiations a fairly rigid method for firing one of its employees, and it can also be fairly certain that the union does not look favorably on management terminating an employee without the proper documentation called for by those negotiations.

The risk management took by precipitating these events was that they could be sued by the employee and if the employee were to win he would probably be entitled to compensation under the auspices of 'contract law'.

Wolfgang Franz states that employees are entitled to the following compensation if they win in court on a wrongful termination suit: back pay, future earnings, fringe benefits (including; retirement plans, insurance benefits and other fringe benefits), prejudgment interest and attorney fees and costs." (Franz 1990-page 32).

This can be a costly adventure for the company when taking into account all these additional costs. Franz went on to state that "two common law doctrines allow recovery of damages in wrongful discharge action" (Franz pg 32).

According to Franz those two common law doctrines included; that the employment was an implied-in-fact contract. An implied-in-fact contract is evidenced by the employer by the very act of hiring an individual, and as such is implying that the employee will not be fired without just cause. In Tom Kinder's case, the company may have had a just cause, but made no attempt to either inform Tom nor to help Tom overcome the obstacle keeping him from accomplishing his job duties.

The second common law doctrine is best stated by the fact that an employee is allowed to collect compensation based on a breach of contract.

"It is based on the covenant of good faith and fair dealing which is implied in all contracts as a matter of law. Conceptually, the covenant requires that contract rights be exercised in a manner that does not violate the covenant." (Franz pg 33).

Keeping these two constraints in mind, management could have done much better in regards to how the situation was handled.

Concerning the employees, each individual will have different 'me' issues depending on where, when and who they work with or for. The 'me' issues will also depend on their job title and functions

Being a strong leader while implementing such a drastic measure as the one being recommended against Tom is a very important element to success or failure of the venture.

Of course, if management had been a lot stronger in the first place in providing direction for Tom, this situation may have been clipped in the bud from the very start.

"Some leaders fail because they provide too much or too little direction and coaching. The best leaders/coaches find the balance point that challenges people while showing confidence in people's abilities to succeed." (Thornton 2000-page 103).

A written out policy regarding the procedures to be followed during the entire termination procedure could have been very helpful as well. The stakeholders in this particular scenario all seem to be in a lose-lose situation.