Managing the Non-Performing Employee

By Nicholas J. Fiorenza, Ferrara Fiorenza PC

The following is an excerpt from our Desk book of the same title, and the topic of the April 25th HR Academy Webcast.  Registrants for the webinar receive a copy of the desk book.  Register online here.  Nick will also be presenting at the HR Conference scheduled for May 2 & 3, 2023 at Turning Stone.

Evaluating Company Discipline

Whether operating in a union or non-union environment, or the public or private sector, certain general principles will help the employer withstand a challenge to its decision to impose discipline. The following considerations should be addressed before a final decision regarding the discipline, especially discharge of an employee, is reached:

  • Is it clear that the employee was aware that his or her conduct violated company standards or rules?
  • Was a written rule involved? If so, was the rule posted or distributed to the employees? Is the rule related to a reasonable business interest?
  • Does the standard used to measure employee performance conform to acceptable industry practice? Does it create a personal affront to employees? Is it arbitrary or capricious?

All warning notices (written and oral) should clearly detail their purpose; be specific as to facts, dates and times, the standard that was violated, and future conduct expected from the employee.

  • Can the manager establish that the company rule or standard has been consistently applied with regard to all employees?
  • Has the employee at issue been “singled out”?
  • Have other employees “gotten away with” the same conduct?
  • Did the employee receive the same training or help in meeting the company standard that other employees may have received?
  • Can the manager establish that the employee was aware that failure to meet the company standard would mean loss of his or her job?
  • Was prior “progressive discipline” taken?
  • Did the employee receive a formal written “last chance” warning?
  • Is the incident a “single incident” or “summary” discharge? That is, is it based on one occurrence that is so intolerable that the employer cannot accept even the possibility of it recurring? (Typical single incident discharge offenses include willful destruction of property, substance abuse on the job, stealing, fraud, etc.) If so, is the manager satisfied that discharge on the basis of the offense is consistent with past action taken at the company?
  • Does the punishment fit the crime?
  • Has the manager considered the employee’s past record and length of service?
  • What has the employer’s past practice been?

The Concept of Just Cause

Many union contracts limit the employer’s right to discharge to cases of “just cause”. While not technically required to adhere to this standard, even managers in a union-free environment can benefit from application of this principle. This is because a discharge decision which was made in consideration of the just cause standard will virtually always stand up if reviewed by a state or federal agency. Just cause discharges may be made if the following conditions are met:

  • Employee possessed knowledge of the consequences of his or her violation of company standards or rules;
  • A reasonable, well-communicated employer standard is at issue;
  • A complete and well thought out employer investigation of the employee’s conduct took place;
  • You can demonstrate fairness and objectivity;
  • You have a significant degree of proof of violation of company rules or standards;
  • There has been consistent application of company standards; and,
  • The punishment “fits the crime”.

Nicholas J. Fiorenza, PGCA Association Counsel
Ferrara Fiorenza PC
(315) 437-7600


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