Dianne Glasscoe Watterson, MBA
I fired an employee recently because she could not get along with the other staff members. She thrived on spreading gossip! In the past year, she was involved in clashes with two other staff members, one of whom suddenly quit. I did not want to get involved in their dispute, and I mistakenly believed it would all blow over. The staff member who left was a valued employee, and I am still reeling from her departure.
The problem now is that the employee I fired is threatening to hit me with a wrongful termination suit. She claims her firing was retaliatory. I thought in an “at-will” state I could fire anyone for any reason. Was I wrong about that?
Dear Dr. Fred,
First, I think you made the right decision to terminate the employment of the “pot-stirring” staff member. The only mistake I see here is your procrastination in not firing her sooner!
That mistake caused you to lose a valued employee. The day you figured out that this employee was prone to gossip and was causing problems with other staff members was the same day her employment should have been ended. A staff member with a proclivity to gossip can cause great damage to staff morale, which ultimately hurts the practice.
The reason you fired this employee was because of her inability to work in harmony with her team members. Her claim of retaliation has no merit. Retaliatory discharge, which is an exception to the “at-will” standard, is a legal term for the termination of an employee who is engaged in a protected activity, such as filing a workers’ compensation claim or blowing the whistle on an employer who is engaged in illegal activity. The actions of your employee that resulted in her termination are not protected.
The “at-will” doctrine states that either party — the employee or the employer — retains the right to end the employment relationship with no liability. However, in recent years, there has been a disturbing erosion of that doctrine. Three exceptions have arisen:
1) The first exception is called the “Public Policy Exception.” In this case, an employee is wrongfully discharged when the termination is against an explicit, well-established public policy of the state. Examples include termination for refusing to break the law, or for filing a workers’ compensation claim. Such terminations would be considered retaliatory.
2) The second exception is called the “Implied Contract Exception.” Typically, problems with implied contractual relationships arise when an implied contract is formed between an employer and employee, even though no express, written instrument regarding the employment relationship exists. An example of an implied contract is an employee handbook that does not contain an express waiver that “these guidelines do not create contract rights.”
3) The third — and perhaps most disturbing — exception is the “Covenant of Good Faith Exception.” This concept has been interpreted to mean that employer personnel decisions are subject to a “just cause” standard and that terminations made in bad faith or motivated by malice are prohibited. An example is the termination of a long-term employee with a good work history and no documented performance issues. The actions of the employee should provide the basis for a “just cause” firing. But to fire an employee and not give a justifiable reason has been shown to be in violation of the covenant of good-faith. This does not mean that an employer cannot fire an employee who commits an egregious act, even though the employee’s work history has been acceptable.
My advice is to document the issues that led to the firing. You should also have a well-written policy manual for your practice.
Dianne Glasscoe Watterson, MBA, is a consultant, speaker, and author. She helps good practices become better through practical on-site consulting. Her book, Manage Your Practice Well, is available for purchase at www.professionaldentalmgmt.com. For consulting or speaking inquiries, contact Dianne at [email protected] or call her at (301) 874-5240.
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