Discipline and Terminations: Discipline and Terminations: Wrongful Discharge Act, Just Cause, Wrongful Discharge Act, Just Cause, Discipline Basics, and Other ItemsDiscipline Basics, and Other Items

for Employers for Employers

Michele PuiggariMidwinter 2015

Failure = Expense ($ and time)Failure = Expense ($ and time)

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Types of Legal Actions Related to Types of Legal Actions Related to TerminationTermination

• Discrimination• Montana Human Rights Act

• Sex, age, race, physical or mental condition, creed, nationality, religion

• Wrongful Discharge• Violated WDA• Terminated without good cause, against public policy, or in

violation of handbook• If public employer—terminated without just cause

• Unemployment Insurance• MT 39-51-et. seq.

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Wrongful Discharge ActWrongful Discharge Act§39-2-904. Elements of wrongful discharge - presumptive probationary

period(1) A discharge is wrongful only if:

(a) it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy; (b) the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or (c) the employer violated the express provisions of its own written personnel policy.

(2) (a) During a probationary period of employment, the employmentmay be terminated at the will of either the employer or the employeeon notice to the other for any reason or for no reason. (b) If an employer does not establish a specific probationary periodor provide that there is no probationary period prior to or at the timeof hire, there is a probationary period of 6 months from the date of hire. 4

Wrongful Discharge ActWrongful Discharge Act• ONLY TWO TYPES OF DISCHARGE:• a constructive discharge • Any situation where employer severs relationship ( including

resignation, elimination of the job, layoff for lack of work, failure to recall or rehire, and any other cutback in the number of employees for a legitimate business reason)

• “Good cause" means reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reason.

• Can only use WDA defenses if send grievance policy within 7 days• Defenses: limits damages to 4 years’ wages

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When to DisciplineWhen to Discipline• Any time employee violates rules, procedures• YOU ARE THE SUPERVISOR. EMPLOYEE IS NOT YOUR FRIEND.• NO one ever feels discipline is constructive: be professional

and stick to the facts• Don’t let employees skate—if you don’t discipline, then

behavior becomes acceptable. The longer you let it happen, the harder it is to correct.

DOCUMENT THE FILE EVERY TIME!!!

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DisciplineDiscipline• Written• Put in facts, not opinions• Shorter is better• Have employee sign (witness if needed)

• E-mail• Way to recap verbals• Way to record without seeming to• Use statement that ‘if you don’t agree, let me know’

• Quiet place – uninterrupted• This is not a discussion/argument: don’t engage

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What Discipline Should What Discipline Should IncludeInclude

• ALWAYS FOCUS ON EMPLOYEE’S PERFORMANCE• What the employee did that was wrong• Facts, not opinion

• What rule/policy was violated• Can be verbal if you don’t have written policy• Can be behavioral (they are the gossip and create bad feelings

among employees. OK to have policy that all employees must respect each other and not cause friction—be sure to document bad behavior)

• What discipline you intend • What behavior you expect for improvement/good performance• The time frame expected for improvement• Can be immediate improvement for the duration of employment

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Probationary PeriodProbationary Period• Why is this important?

• At Will (no just cause)• Documentation needed after period• Document during probationary period• Don’t pass probationary period unless you’re sure

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Public EmployeesPublic Employees• Public Sector Employees have Property Interest in the Job

• Like having a house• To Suspend/Terminate an Employee you MUST show Employer had Just Cause• Must have under CBA

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Just CauseJust Cause• Definition: Is the Proposed Disciplinary Action Firmly and

Fairly Grounded?

• How to Establish• Use 7-Step process to analyze whether discipline is for Just

Cause• These 7 Steps are a practical and effective way to

determine whether a proposed disciplinary action is firmly and fairly grounded

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7 Steps7 Steps• Notice • Reasonable Rules & Orders • Investigation • Fair Investigation • Proof • Equal Treatment • Penalty

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Questions before you terminate1. Is employee covered by CBA2. Is there a policy covers issue3. Is there a past practice for handling this issue4. Has the employee been told of this in past and given chance

to fix it1. Most of time look at this BUT not always2. Is it documented

5. Has the employee recently engaged in protected activity (mentioned or indicated any issue related to discrimination)

1. Have they stated pregnant2. Requested FMLA or accommodation3. Filed discrimination complaint in last 6 months

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More questions

6. Will the employee be surprised

7. Is there documentation to support-shows objective basis for termination• consider possibility discrimination based on protected class

played role in decision

8. Has employee been provided Due Process

9. Does anything not feel right

10. Have you consulted with MACo14

Forms• Discipline Form• Verbal documented• Written• Performance Improvement plan or Corrective Action Plan

• Due Process• Suspension • Termination• Either: Can attach discipline

• ON MACo website• http://www.mtcounties.org/risk-sharing/personnel-services

• If law enforcement Garrity warning

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