Stephen O'Connor, SPHR, is senior director of Professional Search Services for the MHA Service Corporation, Lansing, and can be e-mailed at soconnor@mha.org

Staff Matters Newsletter March/April 2001
Just Cause or Just Because
By Steve O'Connor

Determining the discipline or discharge of an employee is one of the most important and imperfect tasks a manager will probably ever have to do. It is tricky because there are so many questions to answer. Who did what and when? Who’s telling the truth and who’s bending it? Who knew (or should have known) about rule violations and what was done with this knowledge? What was the intent of the employee and what were the circumstances?

Some of life’s day-to-day questions are perplexing enough, such as, "Why is there an expiration date on sour cream?" One of my favorite comedians, George Carlin, likes to muse about life’s difficult dilemmas. He asks questions like when sign makers go on strike, is there anything written on their signs? Or why don’t sheep shrink when it rains? Or why do they report power outages on TV? One of his best is, "I went to a bookstore and asked the salesperson where the self-help section was. She said, "Well, if I told you it would defeat the whole purpose, wouldn’t it?"

There are many questions that defy answers but when it comes to employee discipline, there are seven questions you can answer to determine the justice of an employee discipline or discharge. Thomas Baird, attorney with the firm of White, Przyblyowicz, Schneider and Baird in Okemos, has outlined the Seven Tests for Just Cause. They are also the seven layers of defense for an employer in the event of an action for wrongful discharge.

  1. Have you given notice on what constitutes misconduct and its consequences? Is this notice written down, is it required reading for the employees, and does it describe what unacceptable behavior looks like and what the consequences are?
  2. Are the rules and orders reasonable? Would your mother think they made sense?
  3. Have you done a thorough investigation and provided due process? There are at least two sides to every story.
  4. Has the process been fair? Is this the way you’d like to be treated?
  5. Is the evidence adequate upon which you base a decision? Get your information from several sources, not just one.
  6. Was equal treatment provided? Were all the employees involved treated the same?
  7. Was the imposed penalty proportionate to the offense? Did the penalty fit the crime?

Answering employee’s questions honestly and getting honest answers to your questions, within these seven guidelines, will ensure fairness and support employee accountability. It is much easier to ask these questions of yourself, as you move through the discipline process, than to answer them to a plaintiff attorney in a deposition or a legal proceeding.

Questions you’ll probably never hear in a courtroom but are ones I’ve often wondered about are why do hair shampoo instructions say lather, rinse, repeat? If you did this, would you ever be able to stop? How do you know when it’s time to tune your bagpipes? My personal favorite, however, is if a telemarketer and an IRS agent were both drowning and you could only save one of them, would you go to lunch or read the paper?

Sidebar:

Written policies and anecdotal documentation supporting the seven tests for a just cause discipline can insulate your organization and support your employee relations efforts.