How Can We Document To Prevail at Abritration?

Question to Ask the Workplace Doctors about reinstated employee:

We had an employee lie on her time sheet and we fired her. She won arbitration and received unemployment benefits. What can we do to protect ourselves from this again?

Signed, Frustrated

Dear Frustrated:

We’re not authorities in the area of labor and employment law, but often these issues are rooted in communication issues over time, so I’ll share a few thoughts. Sometimes it seems that no amount of documentation is enough to convince an arbitrator that dismissal or discipline was fair. However,there are a few things that can make it more likely that the arbitrator will fully understand the perspective of the employer and agree that the disciplinary action was correct.
1. Supervisory communication needs to be taking place all the time. It will include training, correction, commendation, guidance, direction, counseling and evaluation of performance and behavior.Arbitrators often have a justifiably negative view of disciplinary documentation when there is no documentation of anything else. In the case of the employee in your work, there may have been the feeling that the time sheet issue was isolated and thus could have been handled less severely. OR, it could be that all that was documented were negative things and there appeared to be few efforts to find positive things to reinforce. Or, it could have appeared that no training or counseling took place to correct negative behavior or performance.
2. Performance evaluations need to be written effectively and with plenty of examples, as well as follow-up plans to correct problems. If the employee’s evaluations showed her to have been effective or at least acceptable over time, the time sheet situation would be an unusual event, worthy of counseling or some other sanction less than firing. If she was not acceptable and received good evaluations anyway, she was given tacit approval for her poor work or actions. If she was given bad evaluations but no long-term performance improvement plan was put in place, there is another lack by management. It is crucial for all employees as well as for employers that performance evaluations be helpful for correction as well as helpful for reinforcing what they have been doing right. But, correction and commendation can’t wait until formal evaluation time, it needs to be ongoing. The formal report should just reiterate what has already been told to the employee.
3. All other employees must be treated similarly, when situations are similar. If you can show that others did not lie on their time sheets over an extended period of time, that is a compelling thing to include. For example, if someone is late to work repeatedly, one effective way to document it is to use phrases that show that employee was not typical. “All other employees were on time.” “No other employees were late.” “She was the only employee late on this day.”Those things don’t have to be written in such as way as to sound as though you’re beating down an employee about a minor issue. Document in that way for everyone it becomes the norm and a way to compare.
4. The sanctions for misbehavior or poor performance should be appropriate for the totality of the offense, given the prior history of the employee. If the employee in question had been a model employee for years and one day wanted to leave a bit early without losing pay, you might have counseled with her and made her give back the money. If the employee had many other problems and had often slipped out early or come in late, and on that day arrived a half hour late, then lied about it on paper and in person, that would probably be viewed differently.Even if accusations were made about unfair treatment, a review of previous disciplinary actions could support the actions of managers. On the other hand, if none of the other problems were ever documented it’s as though she never had a problem before.5. I mentioned totality in the last point about the employee’s behavior. It also applies to the totality of the workplace and the situations surrounding what happened–at least to an arbitrator it does. For example, if an employee had questioned the actions of a supervisor and a few days later was seen leaving two minutes earlier than the time sheet showed, firing might be considered inappropriate. Similarly, if supervisory methods seem haphazard and employee records appear to be slipshod, it might seem that the whole disciplinary program is mismanaged.In one case with which I’m familiar, the arbitrator noted that the case put together to fire an employee was voluminous with pages of documentation and many examples of problems, supervisory statements, statements from coworkers and calendars in which various actions were noted.The arbitrator asked to see the personnel records of fifty random other employees. None of them had a personnel folder as meticulously put together as the dismissed employee had. The arbitrator said it seemed that there was careful focus on the employee who was fired but very little attention paid to many others and he ruled that the dismissal was excessive. All of those issues are things to keep in mind as you move forward after this recent situation. All of them are the responsibility of supervisors and managers.None of the actions suggested above may have made a difference in the recent case, but they are good to consider for next time.Best wishes to you in your efforts.

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