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Unsatisfactory Employee - Termination or Lay-off?



An employee has made many mistakes and errors and was recently caught in a lie about his attendance in the office. We are planning to dissolve his position. Do you recommend we terminate him or lay him off?


It is up to the employer to determine the reason for the separation of the employee in question. If the employee's misconduct is grounds for discharge, and the employer's policy and practice support terminating the employment relationship on the basis of his recent dishonesty relative to his attendance in the office (which appears to be in addition to numerous mistakes and errors, though it is not clear whether the employer ever addressed these performance deficiencies with the employee), then the employer can and should proceed with its decision to discharge the subject employee as the ultimate disciplinary measure. If the employer has decided that it will not backfill the position and will instead dissolve it after he is let go, it is within its rights to make such decision. It would not seem, though, that in this situation the decision to eliminate the position is the driving force in terminating the employment relationship.

If, however, the employer would not otherwise discharge the subject employee for the most recent infraction and has instead decided to eliminate the position, then as noted previously, it is within its rights to make such a business decision. In this scenario, it would appear that separation is in the nature of a reduction in force and presumably would have had the same outcome (i.e., termination of employment) whether or not the subject employee had committed any policy infractions or been "caught in a lie," etc.

It is generally a best practice to be candid with employees at the time of separation as to the reason(s) for the termination of the employment relationship. In this regard, if the employer has determined to eliminate the subject employee's position for legitimate business reasons (having nothing to do with performance or conduct), then that is what the employee should be told. If, however, the employer has determined to discharge the subject employee for his lack of honesty coupled with performance deficiencies, then the employee should be advised of this and the documentation should reflect the same. The fact that the employer does not intend to backfill the position need not be mentioned during the discharge discussion, as in this situation it would not be the reason for the separation.

Ultimately, as noted, when letting the employee know of the employer's decision to release him from employment, the employer should provide an honest and accurate reason for its action. It is unclear whether the employer's decision is purely a business decision in the nature of a position elimination, or instead a disciplinary discharge based on the employee's misconduct and poor performance (where the employer has decided to simply dissolve the position once he's left the organization). The employer should carefully consider its justification for the proposed decision to end the employment relationship, and should proceed accordingly in effectuating it. As noted, this includes being candid with the employee when the time comes to convey the decision to him. The employer’s action should be well-documented with appropriate notation in the employee’s personnel file.

Want to know more? Click here to listen to our podcast on progressive discipline/termination and discharge.