Employment Law: Dismissal for Poor Performance

Dismissal for Poor Performance

• Poor performance is when an employee doesn't meet required job standards.
• Dismissals for poor performance are sometimes called "no fault" dismissals.
• An employer can only dismiss an employee for poor performance if the dismissal is fair, in both reason and procedure.

Incapacity

• Incapacity means an employee cannot perform their job duties.
• Incapacity is not due to fault or negligence of the employee.
• Incapacity can be a reason for dismissal.

Types of Incapacity

• Poor performance: lack of skills, knowledge or inefficiency
• Medical: illness or injury

Performance Appraisal

• Performance appraisal documents can be used in dismissal cases.
• Ratings are used: High, Above Average, Average, Below Average, Low.

Dismissal for Poor Performance - Code of Good Practice

• The code of good practice includes the determination of whether the employee failed to meet a performance standard.
• Consider if the employee was aware of the required standard, given a fair opportunity to meet the standard and if dismissal was an appropriate sanction.
• Investigation of reasons for poor performance, and the weaknesses in the employee support system.

Code of Good Practice: Dismissal - Substantive Fairness

• Consider if the employee failed to meet a performance standard.
• Was the employee aware of the required standard?
• Was the employee given a fair opportunity to meet the required standard?
• Was the dismissal a proportionate sanction for not meeting the required standard.

Did the Employee Fail to Meet a Performance Standard?

• Employers must investigate instances of poor work performance.
• The investigation determines the causes of poor performance.
• The investigation determines if any weaknesses exist in the support system.
• Determine if steps can be taken to rectify the situation.

Standard Exists and is Reasonable

• It must be proven the required standard exists and is reasonable.
• Policies, practices, and other employment contracts can be used.
• Other employee performance/standards can be used to assess the employee's performance.

Awareness of the Performance Standard

• Employees should be aware of the required performance standards.
• General directives or ad-hoc measures can convey the required performance standard.
• This can include warnings and counseling.
• The more warnings given the more likely the employee is aware of the standards.

Reasonable Opportunity to Improve

• Employees should be made aware of their shortcomings and how to rectify them.
• Employees must be given a chance to improve.
• Factors to consider when determining how much time should be given are: job complexity, volume and nature of work, employer's business, and employee's qualifications & experience.

Appropriate Sanction

• Dismissal should be the last resort.
• Employees must be given a chance to be heard before a dismissal decision is made.
• An employer must prove an employee is unable to perform their duties.

Probationary Employees

• Probationary employees can be dismissed for less serious reasons than tenured employees.
• The purpose of a probation period is for the employer to evaluate the employee's performance.
• Employers provide evaluations, training, guidance, or counselling.

Probationers' Rights

• Probationers, like other employees, are entitled to evaluation, training, guidance, or counseling.
• Probationers are allowed to make representations prior to dismissal and can be represented by a trade union or other employee.
• The length of the probationary period should be reasonable, considering factors such as the job's nature.

Probationary Use

• Probation periods cannot be used as a tool to circumvent the law or standards, for example, to deny permanent work status.
• Employers must choose to either extend the probation period or dismiss the employee.
• Dismissal is only permissible after the employee has been given the opportunity to be heard.

Medical Incapacity

• Medical incapacity is used in dismissal scenarios in cases of ill health.
• It also includes instances of an inability to fulfill job duties due to illness, injury, or disease.
• The inability must align with the expected standards.

Code of Good Practice: Dismissal - Principles

• Employers should determine the employee's capacity for job performance.
• The extent and likely duration of the employee's incapacity must be established.
• Employers should investigate if duties can be modified or if alternative work arrangements are available.
• A consideration of alternative work (even if at a reduced rate) must be made.

Substantive Fairness

• Consider if an employee is able to perform their job duties;
• To what extent is the employee capable of working;
• Can the work circumstances be adapted; and
• Is alternative work available?

Procedural Fairness

• Identify the severity of the incapacity.
• Consider possible alternatives; and
• Implement a fair dismissal.

Seriousness

• Employers must determine the seriousness of employee incapacity.
• Dismissal for short-term illness or injury may be unwarranted.
• Determine if the incapacity is temporary or permanent.

Alternatives or Adaptation

• Look at adapting work duties to suit the employee's current condition.
• Offer assistance or equipment to aid the employee in their duties.
• Explore alternative work assignments

Permanent Incapacity

• Determine how much of the employee's regular duties they can still perform.
• Look at adapting the workplace environment or work duties to allow them to function effectively.
• Explore alternative job opportunities.