HR Question: Terminating Employees for Past Mistakes

Q: Can an employer terminate an employee for making a costly error years ago that has just been discovered?

A: This answer is based upon the fact that there is no specific employment contract in place that outlines specific reasons for termination of employment and that the employer has an employment-at-will policy in place that provides for termination at will based upon the employer’s discretion.

From the detailed description of the situation, this employer does have an internal disciplinary procedure in place that specifies termination of employment for performance. This error was made years ago and could have been detected if the employee had been conducting annual audits of the file, which was not done, compounding the error.

Although employers can terminate employment “at will”, there should always be a legitimate business reason for the termination that is well documented, nondiscriminatory and carefully considered in order to reduce the employer risk of liability from wrongful termination suits.

The employer should consider the following prior to making the final decision:

Is this employee in a protected class (race, gender, age, disability) where s/he might believe that s/he is being targeted because of that class?
Was the process for auditing and correcting the errors documented and was this employee trained to conduct the audit?
Is this a one-off issue with the employee or have there been other instances of performance concerns? If so, have those concerns been brought to the employee’s attention and was s/he given the opportunity to correct the performance deficiencies?
Is there anything that the employee’s manager or senior management missed that could have prevented this situation?
Has this situation ever happened before with another employee? If so, how was it handled?
If an audit of other customer files took place today, could there be this same type of error made by other employees (pointing to an overall training or supervision issue)?

If the employer believes that the situation warrants termination of employment because it is well-documented, the employee has been properly trained, the supervision was adequate, and that this is a unique situation, then a termination is allowed, but we recommend confirming the decision with legal counsel prior to the termination.

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