Last post March 26, 2012 22:34 PM by rammohan. 1 repiles.
I need some advice and quickly...We hired someone to take a position overseas for 3 months with a promise of being offered a management position upon their return to the states. The person is hired, works 3 months for us overseas and then is told 3 months after they returned that we have nothing for them and basically they are fired...Can we do this? Do we or they have a leg to stand on? Can they sue? We are an at-will employer?? Thoughts or advice are greatly appreciated.
I don’t have all the facts, so I’ll just theorize. If a formal contract exists, and the employee relied on the terms and conditions – 3 months out of country and upon your return you will be given a management position – and fulfilled his part of the bargain – successful completion of the duties and responsibilities assigned to him – the Company would be hard pressed to argue that exigent circumstances caused the failure of the Company to fulfill its obligation to the employee. Under these set of facts, the company has breached the contract and could be liable for damages.
On the other hand, in the absence of a formal contract, if the employee relied on the company’s “good faith and fair dealing” regarding the overseas assignment, and promotion upon return, and communicated the understanding to family, friends and others, the company has perpetrated a fraud.
It is hard to believe that someone would leave a place where they have lived for a time, where their children grew up, where their parents lived (and perhaps died), and where treasured memories abound, to uproot himself from such a comfortable and secure setting to venture into the unknown without some promise of a reward on his return.
Of course, the reward would be provided for successful completion of the assigned duties and responsibilities and the attendant improvement in revenue, morale and/or efficiency. If there were negative aspects of his foreign tenure, especially where moral turpitude, or illegalities are involved, then there may be a basis for dismissal. The company should have clear and convincing evidence of such conduct, or, in the alternative, poor performance evaluations or negative comments from peers, and superiors as to his interaction with others, both inside and outside the organization, his personal life style which is counter to the “corporate image”, or erratic or bizarre behavior which could result in damaging the company’s reputation in the marketplace.
Absent these conditions, it could be argued that the Company, willfully and with malice, knowingly allowed the employee to return, then, without cause, terminated him after 3 months.
Even though the Company is an “at will” employer and can terminate an employee for good cause, bad cause or no cause, there is “public policy” restraint on its actions.
If the employee is in a protected group under one or more “alphabet soup” Federal, or State discrimination statues administered by such agencies as EEOC, NLRB, DOL, and Fair Employment Commission (FEC) any action by the Company which violates the “public policy” rights of the employee, could be challenged, administratively or through the courts.
I would recommend that the Company re-employ the individual into the position (or something similar) he held prior to his discharge. Such reinstatement must include full back pay and benefits, as though he had never left the organization. In addition, it would be a wise gesture for the Chief Executive Officer to offer an apology for the crass and insensitive action of the organization, which caused untold distress and anxiety to the employee and his family.
A little face saving and groveling now will prevent a major public relations disaster in the future; a scenario in which the organization could be tainted in the eyes of customers, the marketplace, and society for years to come. Simply stated, it is making the best out of a bad situation.
Finally, the organization should provide alternative career paths (and appropriate mentors) for the affected individual so that he can choose his own destiny and have the opportunity to succeed or fail.
Hope this helps. Should ygards,ou have any questions, feel free to contact me at email@example.com
What's in the appointment letter? Any promise verbal or a written consent was given to the said employee?
Between its a management discretion under the master servant rule that they can
discontinue the employement of any one where and when required.
With this limited information,it is difficult to provide sound advise.
You note there was a "Promise of being offered a management position".Is this in a signed employment contract? If so the contract may well determine liability as well. This would be in reference to the other language in that document. If no signed contract, than lets look at your "at-will" status. Do you have an employee handbook? If you do: 1) Does it include an at-will statement and in that statement is there a statement that there are no agreements or contracts unless they are in writing and made with the signature of ... ( the President or the CEO, etc)? 2) If this is in the manual, do you have a signed form in the employee's personnel folder from that manual noting that he/she received the manual, has had the opportunity to read it and asked questions, and accepts etc. ? Is this forms signed by the employee and dated? Is there any protected class issue here that you failed to note or a "smoking gun" situation ( for instance one of those e-mails that appears to recognize a contractual agreement or the employee complained to a state department about working conditions, and the term appears to be in response to the compaint,etc).
As you can see there is a lot that needs to be established. I also suggest that you research these before responding here. Many times the employee's former manager has material in a file or their e-mails that you are not aware of.
I hope this offers you some guidance.