We have all been in the position of having to terminate an employee. It does not matter if the person has been with you for a few weeks or for several years. It is never easy to terminate an employee. Anyone that disagrees is either a liar (maybe a lawyer) or just has a heart of stone.
You internally beat yourself up over the decision and can spend several days, weeks or months asking yourself what you could have done differently to make the person successful. Well, you cannot make someone be something they do not want to be.
Let’s say you are at the point where you want to terminate an employee. You have to ask yourself whether or not you have followed the law, so that you can terminate the employee without facing any repercussions for violating the “Wrongful Discharge from Employment Act”. The Act states that a discharge is wrongful if:
- The termination was in retaliation for the employee’s refusal to violate public policy or for reporting a violation of public policy;
- The termination was not for good cause and the employee had completed the employer’s probationary period of employment; and
- The employer violated the express provisions of its own written personnel policy.
This sounds pretty simple. First, you cannot fire an employee if they refuse to act in a way that is against the public interest or if they report that a violation is occurring in the workplace. I am sad to say, but the most common example the we see is sexual harassment. If an employee reports sexual harassment, then you cannot fire that employee for reporting the sexual harassment.
The second step states that the termination is wrongful if the employer does not have “good cause” to terminate the employee, after the employee has completed their probationary period. Montana has a statutory probationary period of six months, unless the employer states that the probationary period is shorter. Once the employee is beyond the probationary period, then the employer must have “good cause” to terminate the employee, which raises the question as to what “good cause” means. “Good cause” is defined as reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of operations, or other legitimate business reasons. To add to this definition, the employer has to give the employee notice to correct their behavior, unless the behavior puts the employer or its employees at risk. So, in most instances, the employer must work with the employee to correct the behavior, at least once to ensure termination for “good cause”. I recognize that I have tried to simplify this issue for this article, but if you have any questions, then do not hesitate to call your attorney.
The last step to consider is whether or not the employer has violated its employee manual by terminating the employee. This only applies if the employer has a written manual or has verbally expressed to its employees a position regarding their employment.
Whether or not an employee can receive unemployment benefits is for another article. I would encourage anyone that has any questions regarding the “Wrongful Discharge from Employment Act” to speak to their attorney or employment advisor.