This is a question I’ve tried to handle more than once, but I have a big disclaimer: I don’t hold HR certifications, and I can’t give legal advice.
But I can share some thoughts that have been helpful to others.
Most managers are working managers.
And as such, sometimes they lose sight of the more important things their direct reports do. This is why it’s so important for managers to hire the right people and develop them. By getting hiring right, the development process will be smoother, and you’ll have fewer problems to solve down the road.
At the end of the hiring process, a former boss of mine would tell every hiring committee:
“Now that we’ve decided who to hire, it’s up to us to make sure they succeed.”
There’s a subplot in an early episode of Grey’s Anatomy where the intern, George, is instructed by his attending, Miranda Bailey, to revive a patient. He tries over and over, but isn’t successful. Each time Dr. Bailey comes to check on him, he protests that there’s no point. Bailey tells George to try something else. Eventually, all options are exhausted. After calling the time of death, George asks Dr. Bailey, “What’s next?”
“It’s time for you to talk to their family,” she answers.
George has never done this before. “But what am I supposed to tell them?”
“You know,” answers Bailey.
A look of realization comes across his face. “I’m going to tell them I did everything I possibly could.“
So when can you fire someone for performance issues?
Once you’ve done everything you possibly can. That doesn’t mean that the process has to take forever, but it does mean you have to ask for what you want, provide the necessary help, stay persistent in asking for changes, and make it clear that their job is on the line if nothing changes. Eventually you’ll have to adopt a no-tolerance-one-more-strike-and-you’re-out stance.