Frontiersman, lawyer and politician Davy Crockett once said, “Make sure your right, and then go ahead.” It’s pretty straightforward advice and one you should take to heart when you are considering firing someone for cause. You need to make sure the employee actually did what they are accused of doing, and you have to make sure that the process is fair, impartial and that the same criteria are applied across the board to each and every person in the firm. Only then will you be “right” and only then should you go ahead. If you don’t, you will end up like Apple Healthcare Inc. Here is the story:
Laurie Gambardella was an admissions counselor at the Waterbury Extended Care Facility, which is operated by Avon, Connecticut-based Apple. She was told by the niece of a patient who died shortly after admission to the facility that she could take whatever she wanted of the deceased’s personal property. She selected a pair of chairs. However, even though an investigation confirmed Gambardella had received permission to take them, she was terminated for theft.
Given the fact that Apple’s director of admissions and marketing was present at the termination, and that others, including the plaintiff’s daughter, heard she had been fired for “taking furniture from a dead lady,” Gambardella filed a defamation suit, charging Apple, the care facility and the facility’s administration with communicating false accusations of theft to others in connection with their termination of her employment. The original trial court judge found Apple guilty and awarded Gambardella $224,000 plus costs. Apple appealed to the Connecticut Supreme Court, claiming that the trial court “improperly determined that the qualified privilege for intra-corporate communications had been abused and therefore lost.” A “qualified privilege” protects a party to a lawsuit if they have made an honest mistake.
The Connecticut Supreme Court disagreed, saying that “a showing of either actual malice or malice in fact will defeat a defense of qualified privilege in the context of employment decisions.” The justices also affirmed that the evidence indicated that “there simply was no basis for a belief that the plaintiff had stolen property from the facility.” In issuing their ruling upholding the original trial court verdict, they said that, “It is axiomatic that a defendant who closes his eyes to the facts before him cannot insulate himself from a defamation charge merely by claiming that he believed his unlikely statement. We conclude that there was sufficient evidence to support the trial court’s finding of actual malice.”
Now, is this likely to affect similar cases in other states? We will have to see. But, it is clear that statements made internally can be used against you and your business if they rise to the level of defamation. If the employee can prove a level of malice, then there is no qualified privilege to defend you. In other words, simply saying that you believed what you were saying—or actually believing it, for that matter—does not make you right, which brings us back to Crockett’s legal maxim, under which Apple should not have acted against Gambardella.
There is a way to do it, however, which can protect you. It does require that you do the one thing that the folks at Apple Healthcare seem to have neglected. You have to act like a professional. That means you don’t discuss the case with anyone other than the accused and those in the company who absolutely must know, and when you do, speak only in the most professional of ways and do not speak as if the employee is guilty until you have solid proof that they are and you are about to fire them.
Now, when it comes to the actual termination process, you should have policies in place that apply to everyone. You have to investigate honestly and you have to abide by the findings of the investigation even if you don’t like them. More than these, you need to document everything to be able to demonstrate in court that you followed proper procedures and made every effort to be fair and impartial.
Unless you catch someone in the act, firing for cause can be a complex and difficult thing, but it is worth the effort to avoid the legal hassles and expenses that can ensue from being wrong and going ahead anyway.
