Dealing With an Employee You “Can't” Fire: 2 questions every leader needs to ask

Episode #406 Dealing With an Employee You “Can't” Fire: 2 questions every leader needs to ask

Here’s a common scenario.

You’ve got someone who isn’t meeting the standard. And for whatever reason, you can’t deal with it the way you’d really like to.

Maybe they’re great at their technical role, and you don’t have anyone who can replace them in the short term…

Maybe the system and the culture you’re working within make any reasonable performance expectations impossible to enforce.

So you’re stuck… You know you’re stuck… They know you’re stuck… And what’s even worse? They know that you know!

This week I sat down with three No Bullsh!t Leaders from our community facing exactly that. 

Haley runs a healthcare team carrying two talented jerks who’ve gamed every performance improvement plan she’s thrown at them. 

Amit’s a consulting CEO trying to hold subcontractors to account, without the accountability always defaulting back to him. 

And Luke’s a senior leader in government, where the performance management process is so cumbersome, that anyone who wants to game the system to avoid any repercussions, can do it pretty easily.

Three industries. Three completely different sets of rules.

And honestly, the same answer underneath all of it.

Let’s start with Haley.

Haley: the two who play the game

Haley leads a team of 10 in healthcare. Two of them are genuinely strong on the technical side. Trouble is, they’re also toxic.

And she’s done everything by the book. She’s had the direct conversations, she’s put them on performance improvement plans (PIP), she got them right to the edge of being walked out the door. For a while it worked. But when the pressure came off, they slid straight back to where they started.

It took her six months to close out one of those PIPs. The very next month, in a lab meeting, she’s copping eye rolls, scoffs, and raised voices. It’s not just aimed at her, either; coworkers and other departments aren’t spared either.

So here’s what’s actually going on. These two feel indispensable. And when someone feels indispensable, they tend to go one of two ways: 

• Some of them share what they know, and lift the people around them;
• Others use it as a shield and start to behave badly, because they’re convinced you can’t do without them.

They feel secure; so the only way you deal with someone like that is to make them feel just a little bit… insecure.

Now, let’s do the maths. Two people out of ten. That’s 20% of Hayley’s team openly trashing the standard. And every day those two still have a job, you’re signalling to the other 8 that their behaviour is fine.

Of course, Haley’s concern is the one we all feel: they’re hard to replace, and the labour market’s brutal!

Last time around, she waited four months just to get a single applicant. That’s enough to make anyone baulk.

But, the minute you say “they’re hard to replace“, you’ll talk yourself out of the obvious before you’ve even finished the sentence.

So split it. Make it two separate decisions.

The first question is simple: Should they stay or should they go? Answer that honestly, and don’t muddy the waters with all the complexity of how difficult the exit and recruitment process will be. 

Once you’ve answered that, you move to the second question: How do I execute this at the lowest possible cost and risk to the business?

Most leaders don’t separate those two critical questions. They think; “Yeah, they definitely need to go. But…

• “I don’t have time to performancemanage them…

• “And I should be spending most of my time with my best people…

• “And if I don’t have someone in the role, the rest of the team will just have more work…

• “And the employment market is sh!t, so I might not find anyone better…

• “And besides, they’re not that bad!”

Haley’s boss floated a creative idea: Why not give them both the smallest possible pay rise, explain why, and let them earn the rest back over six months with a bit of coaching.

Look, the logic’s not bad, and the instinct is a kind one. But it’s a bit of a Hail Mary (you know, that speculative pass in the dying seconds of a game that comes off about one time in a hundred). 

Let’s say they choose to lift, so that they can get their money… it’s just another form of performance improvement plan, with a little less angst.

They lift for a short time, they manage to briefly meet the minimum standard. Then they drop. Then they lift. Then they drop. If they want the money, they’ll get their act together just long enough to grab it, then sink straight back to where they were. 

All it does is buy you another six or twelve months of exactly the problem.

What these two actually need is a shock. A 40,000 volt jolt (metaphorically speaking, of course). And that shock is either termination, or no money in the review with a straight explanation of why. As the old saying goes, you may as well be hung for a sheep as a lamb.

The good news is Haley already feels it in her gut. And she’s already got her boss behind her. That’s the green light!

Amit: the contractors who don’t mirror his pace 

Amit runs a consulting firm, and he delivers through experienced subcontractors. As the prime contractor, it’s his client, so it’s his reputation, and it’s his brand on the line.

His question was a sharp one: “How do you tell the difference between someone who’s genuinely under-delivering, and you just being impatient because you can see a faster way through?” 

Because every time he jumps in, Amit never actually finds out whether they would have got there on their own. And worse, he can feel the accountability evaporating in them, and clinging onto him.

First thing? The contract. Yes, you need one, and you need to make it as ironclad as possible. But it’s no way to run the relationship, so it’s best left in the bottom drawer. The contract isn’t the thing that holds someone to account. It just sets the parameters, so they know what’s expected. 

The accountability comes from how you lead them, day to day.

And then we got to the nub of the issue. Amit’s a control freak (his words, not mine). He later corrected it to “recovering control freak”!

Here’s what happens to him. When his people are on site, he’s relaxed, because he can see the energy and feel the urgency in the room, so he leaves them to it. But the moment the work goes remote, all of that disappears. 

Then, the unease creeps in; “what’s happening, what’s happening, what’s happening?“, and he starts interjecting. Usually too late, and usually with too much heat.

The fix isn’t more control. It’s greater visibility, earlier.

Be unreasonable about the speed of delivery. Unreasonable, but not irrational. 

I’m not suggesting you be the Nike boss who just barks “Do it anyway“. I’m saying you need to have a relentless focus on speed, right from the start: 

• “How can we get this done quicker?”

• “What do you need from me to accelerate it?” 

• “What can I throw at this to lift your capacity?”

If you ask a few of the right questions up front two things happen:

1. You pressure-test the timeline early, so you’re not lying awake wondering; and
2. You stop being the bloke who only ever shows up when he’s worried.

That was Amit’s ‘aha’ moment. He does the right things. He just does them a little too late, after the worry has already set in, and his leadership tone is already off.

Which brings us to intensity, because Amit runs hot… and he knows it. The trouble with having constant intensity is that people become desensitised to it: it actually stops working. 

It’s just water off a duck’s back, and people just reckon you’re a bit of a d!ck. This is why you need light and shade. Be genuinely light when you can, so that when you do need to get serious, it actually lands, and people understand that, in this particular case, it does matter!

And here’s the cool part: the reason Amit is carrying all of this is the exact same reason he’s the prime contractor in the first place. His clients trust him to keep it under control. The endless herding of cats in between? That’s the ugly reality of leadership in his world. It’s also why he gets paid the dizzy dollars.

Luke: people gaming the system in a consequence-free zone

Luke’s a senior leader in state government, where the performance management process is so cumbersome, that anyone who wants to game the system to avoid any repercussions, can do it pretty easily.

His question was this. “When someone’s wilfully difficult, doing just enough to dodge any consequence, but needing to be redirected at every turn, how do you drive them to the outcome you need when the formal levers barely budge?”

It’s easy to get cynical, but most people aren’t like this. Whatever the sector, the vast majority turn up wanting to do something useful with their day. 

The person who chooses to game the system is (fortunately) an exception to that rule. This problem goes much wider than government agencies. I’ve seen exactly the same thing in unionised businesses. 

You can bet your life that this recalcitrant knows every dotted “i” and every crossed “t” in the enterprise agreement, and they are expert at hiding behind it.

So you’ve got two potential moves here.

The first is to separate and ignore. If you can’t remove them physically, then you may need to neutralise their impact. Keep them away from the team they’d otherwise infect, so you can pour your energy into the people who are actually serious. 

It’s an old approach in Japanese business, where you sit the non-performer off to the side and let the shame do the work. The catch with a genuine system gamer is that they don’t feel any shame, because they’re milking the situation for everything it’s worth. 

It’s a pretty blunt instrument, and it’s neither kind nor pretty.

The second is to keep raising the standard, and this is the one most people get wrong. The gamer lifts just enough to scrape through performance management, in an environment where you’ve put industrial-strength scaffolding around them. 

But the second that support is withdrawn, they drop straight back to where they were before. 

You can’t allow that to reset the clock. The trick is to hold the line. “We’ve just watched you perform at this level for three months, so we know you can do it. From here on out, that is the standard I’ll be holding you to.” 

And if they drop below it, you don’t run the whole circus again, because you’d be at it forever, slowly losing your mind. They get a warning letter; first and final.

It’s worth mentioning a distinction that Luke’s HR had tangled up: this bloke had a no-redundancy clause in his employment agreement, so HR was nervous about supporting any performance-related action. 

But redundancy and performance management are two completely different things. Redundancy is about a job becoming surplus to requirements. Performance management is about a person not doing the job they’re paid to do. Redundancy provisions have ZERO bearing on performance standards.

There’s little cause for comfort for diligent leaders who try to do the best for their organisation (and their people) in the Australian industrial relations framework. The law, regulations, and processes swing very much in favour of protecting individuals, rather than recognising the prerogative of businesses to make decisions about who they employ, and why.

But, even here, the Fair Work Commission is reasonable, as long as your action has been reasonable. The only thing that can really trip you up is failure to follow the prescribed process. There’s always a process. Follow it properly and performance management (even to the point of exiting a non-performer) doesn’t have to be anywhere near as onerous as people think.

Even in government…

There’s also a deeper risk: if you can’t get the backing of your boss, and HR doesn’t have the appetite for performance management work, it opens the door for disgruntled, under-performing people to turn the tables on you.

“Luke’s a good bloke, just not quite our culture. Maybe he’d be happier back in private enterprise.” 

And you’d be amazed how fast that takes hold. So before you move on any of it, block that exit. Get your boss on board, get HR in your corner. And do what Luke already knows in his bones. The moment you spot the problem, start documenting. Build the file early, so when it’s time to execute, you’re not scrambling to catch up at the end!

So that’s three leaders, three completely different scenarios, one consistent truth.

You can’t motivate your way out of a behavioural problem. 

The old expression “The Squeaky wheel gets the oil.” is alive and well.

But if you want to protect your good people, you have to enforce the standard. Even when the system is working against you. In fact, especially when the system is working against you!

Remember how I framed it with Haley. Split the decision in two. 

First question? “Do they stay or go?” 

Don’t muddy that one with how hard it might be to replace them.

That makes the second question easier: “Given that they need to go, How do I execute this at the lowest possible cost and risk to the business?”

Most leaders blur those two together, and they talk themselves out of the obvious answer, because they overestimate the degree of difficulty of the change.

And before you move on any of this, you need air cover: That means your boss has to be on board, and HR has to be in your corner. 

If you don’t close off the exits, there’ll be a whole lot of people who are trying to convince upper management that you’re the problem.

If this one landed, you might enjoy these episodes where I took a deeper dive:

• Ep.240: The Talented Jerk; and 
• Ep.404: 8 Surprising Ways to Reduce Unwanted Turnover

This is the kind of thing we work through every week inside Leadership Beyond the Theory.

Real leaders, real situations, real answers that help them move forward. We’re about to open doors to the June 2026 cohort so head to leadershipbeyondthetheory.com to learn more about our 9-week program.