Termination of employment due to poor performance can only be successfully established if the employer is able to prove the following-
- That there is sufficient objective evidence of poor performance. Mere reliance on the subjective view of the supervisor/superior/manager is insufficient.
- The employer is warned about the gap between his/her performance and the company’s expectations. In that regard, it is useful to have a detailed job description;
- The employee is provided with sufficient time and opportunity to improve. In terms of time frame, it should be between 3-6 months;
- Despite the time and opportunity afforded to the employee to improve, the level of performance remains not up to standard.
All the above must be documented. Failure to document the above will make the employer’s case that much more difficult to prove.
Additionally, bear in mind that misconduct and poor performance are different from each other. When a misconduct is committed, the corrective measure to be taken is in the form of a punishment, which may include summary dismissal, downgrading, or any other punishments (including warning, withholding of increment, suspension, etc), whereas for poor performance, the corrective measure taken is aimed towards improving the level of performance that hopefully will have a lasting effect.
In that regard, for poor performance, there should always be a sequential, progressive corrective action taken before the ultimate decision to dismiss is undertaken.
- Informal discussion
- Verbal warning
- Formal written warning
- Punishments lesser than dismissal
Courts look for:-
- Objective evidence. This is absolutely crucial. While the supervisor/superior/manager can be asked to appear as a witness for the company to provide his/her opinion on the poor performance of the employee, courts have stated that their statements will NOT HAVE MUCH VALUE UNLESS IT IS SUPPORTED WITH OBJECTIVE EVIDENCE. The company must therefore be able to demonstrate and adduce objective of actual incompetency.
- The standard of skill to be expected of an employee is that the employee is competent to do the job he is employed to do, and no more than that. Eg let us use a football example. A goalkeeper is expected to do no more than a goalkeeping function, to remain at goal and to try to prevent the opposition team from scoring goals, NO MORE THAN THAT. One cannot expect the goalkeeper to play the role of a defender, midfielder and striker as well. The courts have succinctly stated that
“..the true rule is that the employee must exhibit just that much skill and no more than that he has warranted he had. If he has proclaimed that he is an expert, he must exhibit expertise. If he boasts that he is a genius, his work must be brilliant. But the presumption is against any implied warranty of extraordinary talent.”
- That the company has carried out steps 2-4 above
- That the company has not been inconsistent with its treatment of the employee
- That the company did not victimize the employee
- That the company has not set unrealistic targets for the employee.
- That the company acted in good faith at all times
- If the company states that it will give the employee XXX months, then the full benefit of the XXX months should be given. If the company lacks the patience and say, dismisses the employee after 2 months despite informing the employee that his performance will be monitored for 6 months, the courts may hold the dismissal to be unfair.
- For probationers, the law relating to poor performance is less stringent. It was held in a case that monthly assessment reviews that are communicated to the employee are sufficient, but it is my opinion that it is still safer to err on the safe side and ensure that it is properly documented. Be objective about the evidence you have. If there is insufficient documentation to properly justify the termination due to poor performance, the probation period should be extended so that the company ensures that the documentation is in place.