AboutTimmy Chou Expertise I am a experienced Mediator and a partner in a management consulting firm. As a mediator I work as a third-party neutral and specialize in partnership/shareholder disputes, management/labor issues, company culture difficulties, and family-owned business problems. I can help describe why alternative dispute resolution may be a good choice for you. As an experienced management consultant I may be able to offer creative ideas to help resolve your organizational and business problems and disputes. "If you say conflict, I say opportunity".
Question Can one party change the reason for termination after the fact of the termination. Example: I was terminated for performance and given a six page list of why I was being terminated. Prior to this the contract had possibly been breached by failing to provide any performance appraisal. In addition, the contract had a four step process for dismissal due to cause. This process was not followed. A sample letter from the employee's attorney indicated that employment should be completed prior to year one of the two year contract. I then was told that that a decision had been made to change a two year contract into a one year contract. Following termination, I followed Diocesan policy and requested a conciliation hearing. At that hearing which was mediated by a neutral third party, the employer gave a different reason for termination. The reason(30 day notice) was also listed in the contract. They stated that performance was not the issue. The probable breaches in the contract all occurred prior to the termination. I was told by the mediator and an attorney that the employees change of termination cause would be held as more appropriate than possible breach.
1.) Can the employer change the reason for termination after the fact.
2.) If potential breaches were committed before the termination, why can they not be used as a defense.
3.) If there is documentation existing that indicates prior consideration of of termination during budget preparation, can this be used to determine that the employer had no real intention of continuing my employment.
Thank you for any information that you might provide.
Answer Thank you for your question!
As I always note to questioners, mediators act as neutral third parties to disputes and never "get involved" in judging the merits of conflict, but merely use special techniques to help the parties decide how to negotiate their own settlement.
The case you describe here is very typical and can be considered a "classic" HR dispute presentation. I cannot mediate this with you alone but I can respond to your question from my business consulting experience.
Note that this may have legal factors and you may wish to consult a labor attorney.
I often tell people that it may be useful to consider that right and wrong are not always the most useful places to begin in dealing with these sorts of problems. For most large organizations there is only expedient and inexpedient. Also, there is a cost to exacting justice and the costs can be quite high. Remember that your person-hood and your work are not even remotely related and that the most successful people at work are often the least successful with others since they have often become successful on the bodies of those they have slain.
You are dealing with authority figures or owners who are only interested in the path of least resistance in terms of how they manage the business. I'm guessing they could care less about you so don't put too much investment in your position. You were terminated for business reasons and now you must create a business reason to deal fairly with you.
It appears that your case was not handled in good faith, but that any twist and turn was employed to justify the need at the time. Please begin by documenting a very careful chronology of events as they have occurred. Names, dates and locations. Put things in writing in a careful chronology. In most states you can be fired for just about any reason without a problem. These are known as "right to work" states. However, you cannot be treated differently than other workers nor can your contract be violated, nor can policies and procedures of the company be overlooked.
If you have a clear roadmap for pursuing a grievance, by all means follow that procedure, but now is the time to send a demand letter by registered mail to the parties, stating your grievance and policy violations (cite the policy) and your demands for satisfaction.
Many states have Employment Commissions or other employment offices where you can file a complaint for free. You should contact them right away and file a complaint. You may also be able to file a complaint with the US Dept of Labor. Find their offices.
If you have Union, industry or trade advocacy organizations available to you that can assist you try to contact them. If you have journalists or press options available, try to contact them. If you have representatives or senators or local state or municipal elected officials you can contact, do so. Your story may play well as an unscrupulous company looking to offload workers and avoid retention or termination responsibilities.
Be sure to send copies of any demand letters and any other proof or correspondence to all these people when you contact them. Your company must see that it will cost a lot more to deal with all the problems you will cause them for their practices and then they will make a business decision and settle fairly with you.
These are some ideas. Feel free to follow up with additional questions.
For your information, the pros and cons of the types of dispute resolution methods follows.
GOOD LUCK!
Arbitration, Mediation, and Litigation
Arbitration: the referral of a dispute to one or more impartial persons for final and binding determination outside of the judicial system
Benefits of Arbitration:
Confidential, no public record
Limited exchange of documentation, information
Quick, don't have to wait for a court date
Arbitrators have expertise in the subject matter and are trained in conflict resolution
Cheaper than litigation
Preserves business relationships
Negatives of Arbitration
It's a compromise, no 100% winner
Complex arbitration can be costly
If not satisfied, may litigate the arbitration procedure
Poor results with an unskilled arbitrator
Both parties must agree to cooperate in the process
Mediation: the process by which parties submit their dispute to a neutral third party (the mediator) who works with the parties to reach a settlement of their dispute.
Benefits of Mediation:
Neutral mediator can objectively suggest alternatives not considered before
Parties are directly engaged in negotiating the settlement
Can be quicker than litigation
Less costly than litigation
Preserves business relationships
85% of American Arbitration Association cases mediated find successful solutions
Negatives of Mediation
may not reach a binding decision
unskilled mediator
Litigation: using the judicial system to resolve disputes
Benefits of litigation:
a clear winner and loser
uses a prescribed set of procedures
more predictable outcomes
is final
Negatives of Litigation:
waiting for court dates can do more harm
usually more expensive than mediation and arbitration
part of the public record
