Grievance Policies for Termination

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When an employee leaves a job, there is always the chance that they will bring a case for wrongful discharge. This is more likely to happen if they are fired, but even an employee who appears to leave amicably can claim that they were constructively discharged (i.e. forced to quit by the work conditions), especially if they have too long to think about it. Employees have a year to file for wrongful discharge, which means that 11 months after they are gone, you can suddenly have a problem – long after memories of the circumstances of their termination are fuzzy.

The good news is that Montana law provides for a way to bring wrongful discharge suits to the surface much sooner: a grievance procedure for terminations. Montana Code Annotated, 39-2-911, states in part that

¬†(2) If an employer maintains written internal procedures, other than those specified in 39-2-912, under which an employee may appeal a discharge within the organizational structure of the employer, the employee shall first exhaust those procedures prior to filing an action under this part. The employee’s failure to initiate or exhaust available internal procedures is a defense to an action brought under this part.

In other words, if you have a termination grievance procedure and the employee doesn’t use it, they can’t later sue your company for wrongful discharge. Having the procedure allows you to set deadlines so that only employees who are serious about having been discharged for bad reasons are likely to grieve their termination, and to deal fairly with issues while evidence is still available.

Your termination grievance should include timelines for action that will result in completion well within 90 days (as mandated by the same section of MCA). Also include a requirement that the employee specify what policy or law was violated in termination; this forces them to think beyond what was “unfair” and gives you a lead on the potential problems. Ideally, there will be more than one level of appeal, maybe first the supervisor and second the boss. The chance to be heard often defuses complaints, so take the procedure seriously; don’t treat it as a pre-litigation formality.

There is one major caveat: this only works if you give the employee a copy of the grievance procedure within seven days of their termination.

(3) If the employer maintains written internal procedures under which an employee may appeal a discharge within the organizational structure of the employer, the employer shall within 7 days of the date of the discharge notify the discharged employee of the existence of such procedures and shall supply the discharged employee with a copy of them. If the employer fails to comply with this subsection, the discharged employee need not comply with subsection (2).

Give every employee¬† a copy on termination, along with any other documents you had out. Get evidence that the employee received it: a signature or initials on a checklist or a second copy, or send it certified mail. Don’t give it to just the employees you fire; people who quit can also have complaints that need to be dealt with.

Using a Grievance for Termination policy gives businesses a chance to resolve problems quickly and provides a defense against delayed suits for wrongful discharge. If you can be sure to give out the policy every time someone leaves, it is worth looking at.