In-House Counsel, Labor / Employment, On The Job

Never Fire A Potential Key Witness Before Trial

In-house columnist Stephen R. Williams shares a cautionary tale.

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fired noteTo set the stage, our company was involved in a contract dispute with a rather standard set of facts. The opposing party claimed the original terms of our years-old contract had been modified on several occasions through the verbal words and emails of one of our employees.

Our employee, let’s call him Simon, was high-ranking enough to have implied authority to amend the contract. However, we maintained the terms of our original contract should govern absent their ability to produce a new, duly executed contract. When confronted about the opposing party’s allegations, Simon admitted to speaking with them multiple times, but he thought he was just being a good business partner, not amending a contract.

While Simon may have suffered from a lack of business acumen, I still do not believe he had any malicious intent behind his discussions with the opposing party. Moving forward, I believed Simon’s role in the organization should be minimized to mitigate future harm, but his conduct did not merit an outright termination.

Shortly after Simon’s role in the dispute came to light, I was approached by his boss, who informed me it was time for Simon to go. He believed Simon had caused too much harm and embarrassment to the organization for him to remain on staff.

Although I understood where his boss was coming from, I attempted to make my best case as to why Simon should remain. First, he had been with the organization a number of years, and we would forfeit a great deal of institutional knowledge in his departure. Second, we could easily reassign Simon to prevent him from interfacing with external business partners and prevent such harm in the future. Third, Simon was a first-time offender, despite being in his present position for a number of years, and he deserved a break.

And finally, if these obvious points did not carry the day, I reminded Simon’s boss that our present contract dispute could well make its way into court. And if it did, it would be best for us to have Simon testify as a happily employed current team member rather than as a disgruntled former colleague we dismissed in haste.

Despite my arguments against his termination, Simon’s boss prevailed and he was let go in short order.

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In the days following his termination, it became increasingly difficult to defend his conduct to the opposing party without the ability to ask Simon for an explanation directly. Furthermore, once the opposing party caught wind of Simon’s departure, they sensed the proverbial blood in the water and went for the kill by filing suit.

And just as I had anticipated, when we approached Simon about being a witness in the case, he had turned from a once jovial colleague into an unresponsive and spiteful ex-employee. Although we could have compelled his testimony, we made the decision that the risk of what he might say would outweigh any benefit of his testimony. Ultimately, we made the costly decision to settle the matter before trial.

Yes, if an employee has engaged in gross misconduct or has demonstrated they truly can no longer be trusted, a swift termination may be in order. But when faced with a colleague who made an error that can be corrected with minimal future business impact, perhaps reconsider the knee-jerk decision to terminate the employee.

At least until the dispute at hand is resolved.

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Stephen R. Williams is in-house counsel with a multi-facility hospital network in the Midwest. His column focuses on a little talked about area of the in-house life, management. You can reach Stephen at stephenwilliamsjd@gmail.com.

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