Ever hear this excuse? It’s almost as bad as “I moved over the weekend, and can’t find my way to work!” Believe it or not, the “you didn’t tell me” defense is heard in courtrooms all across the country on a near-daily basis. It might be about work rules, procedures, time and attendance, or any number of other facets of the workplace rules.
Why? I guess it plays well to the jury, or the judge, relative to policy fairness. It may be viewed as the typical David Vs. Goliath scenario, the big bad company against the poor little employee. Juries are sympathetic, especially during hard economic times such as these.
“I shouldn’t have to tell them everything”
Typical human nature is a funny thing, depending on which humans we are talking about. Managers and front line supervisors normally believe that some things about performance should be taken for granted, and perhaps they are correct in their thinking. They don’t want to micro-manage everybody in their unit making sure each task is performed “by the book.” They shouldn’t have to tell them about every flaw in their performance, employees know that instinctively, or so the leaders think.
“They should have told me I was not performing well, I didn’t know”
Employees, on the other hand don’t typically see things in the same light. Normal line employees, paid average wages for what they do, usually think that everything is “according to Hoyle” unless management tells them otherwise. If a termination for performance occurs, they are taken aback at the outlandish surprise. That is when litigation rears its ugly head. Employees that feel slighted or abusively terminated seek representation at the first opportunity.
Brace yourself for the display of “unfairness” when you find yourself in front of a courtroom. It may appear unfair if there is little to no documentation about performance, or behavior for that matter. Juries and judges may side with the terminated employee based on the sympathy plea and the lack of hard evidence to the contrary.
On the other hand, if you present solid progressive disciplinary reports reflecting the lack of performance, what will happen if it doesn’t improve and the acknowledgement of receipt of the document, you stand a good chance of a favorable ruling. Remember, the employee isn’t signing agreement, only receipt. Witness to the discussion never hurts your case either.
These are litigious times, and those best prepared to defend themselves will fare much better than ill-prepared business entities. When it comes to performance related discipline, documentation is fundamental to sustainability. Whether you utilize an electronic storage method or manual, time and attendance records, performance appraisals, training certifications and all other HR related documents must be secured, complete and accurate. It is your best friend in a labor dispute.
Oh, I almost forgot.
If by some strange coincidence you DO hear the “moved over the weekend” excuse, use this reply.
“Oh, I see. Can you find your way back to your old house? Good. Go there and then come to work.”