What should you do when workplace misconduct ends in arbitrary termination?
Issue:

Sam, a supervisor in your organization, broke up a fight between two workers—a white employee and an African-American employee—and immediately terminated both participants’ employment. A subsequent investigation revealed that the “fight” was actually an unprovoked attack and that the aggressor was the white employee, who was using illegal drugs at the time. The investigation also uncovered documentation of a similar, earlier incident involving two white employees. That incident had been resolved by terminating only the aggressor. What should you do? The immediate termination of the non-aggressor employee now appears unwarranted and, in addition, you have evidence that it could be seen as treating an African-American employee less favorably than a white employee. Yet the termination already has been implemented.
Answer:    

Include the organization’s legal counsel when a review shows that a termination should not have occurred. You may choose to reinstate the employee who was not the aggressor or negotiate a release where the employee agrees not to take action against the employer in return for some kind of compensation, like money or other consideration of value such as a neutral reference and other documents. Before reinstating an employee, however, all concerned parties should be consulted. If possible, reassign the returning employee to a different supervisor.

Alternatives. HR can make alternatives available to avoid immediate dismissals and provide additional input or buy some time. In some organizations, an HR professional is available for emergency consultation; other organizations give supervisors the authority to suspend employees and require that they leave the workplace. Another alternative is to permit immediate discharges, but only in limited, specified situations.

After-the-fact investigation. After an immediate dismissal, an after-the-fact investigation should be conducted just as if a termination had just been recommended but not implemented. An exit interview should be scheduled, if possible, and all required notices and paperwork should be completed. During the interview, get the employee’s perspective of what happened leading up to and including the actual dismissal. Document carefully and completely. This way, any concerns or problems will be revealed and you will be in a position to eliminate a risk to the organization, even though the action has already occurred.

Source: CCH HR How-to: Internal Investigations.
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