Dismissal of employees must be on both procedurally and substantively fair procedures. That is, you must follow the proper process, which you must base on substantive, objective, good reasons. The Labour Relations Act recognises three categories of reasons for dismissal.
- The conduct of the employee; or
- The capacity of the employee; or
- Operational requirements.
A poorly performing employee is a matter of capacity, not misconduct. This requires a performance management procedure rather than a disciplinary procedure. Do not treat incapacity as misconduct, do not try and address it through disciplinary hearings and warnings.
As recommended in the Code of Good Practice, Dismissal (Schedule, LRA Act) you need two different procedures.
The employer is entitled to set reasonable standards and expect that the employee perform to those standards in a satisfactory manner.
To perform work in accordance with those standards the employee must be aware of the standards. You must have told the employee of your expectations of them. This may be through detailed job descriptions, key performance area, targets and time-frames, specific lists of tasks to be completed. The key point here is communication.
You may need to provide relevant training, guidance and counselling as well as a fair opportunity to meet the standards.
You should only consider dismissal if all of the above have failed to meet expectations.
EVALUATIONS
With the possible exception of senior managers, who should be capable of knowing whether they are meeting standards, you must inform the employee of their sub-standard performance.
The initial review is to communicate management concerns, the extent to which the employee is not meeting the standards of performance. Management’s first objective should be to ‘reform’ the employee and not treat it as a tiresome procedure before dismissal. It must not be an adversarial procedure.
- Base the evaluation on a factual basis and, of course, the information must be verifiable.
- Evaluations should be regular over a specific timeframe, dependent upon the circumstances.
- A sample evaluation form is available from Focussed Outcomes. In essence:
- Ensure the reason for the evaluation is clearly presented;
- Allow the employee to raise issues of concern, including training, guidance and counselling);
- Clarify the standards;
- Discuss and agree an action plan;
- Detail the objectives and timeframes for the next meeting;
- Confirm the date of the next evaluation;
- Confirm the possible consequences (normally dismissal) of failing to meet the objectives
Once you have completed all evaluations and assuming performance still falls below standard, then a dismissal with notice may be awarded. Such a notice may require authorisation from a senior manager.
If the employee partially meets the objectives then it is probably best to continue with the process a while longer, making it clear that the process is not finite.
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