The Labour Relations Act of 1995 (“the Act”) contains a Code of Good Practice (“the Code”) which prescribes a set procedure to follow and this is based on the principle of fairness and mutual respect between employer and employee. An employee must be given notice that his/her performance will be managed due to the employer being dissatisfied with his/her performance.

  1. Performance ManagementPerformance management consists of consulting with the employee and giving him/her clear deliverables required of him/her within set periods of time. In the initial consultation, the employer’s standards must be clearly communicated and a written record of such consultation must be kept. The employer must assist the employee in every way possible to enable him/her to meet the required standard. This includes training and support, where applicable.
  2. CriteriaThe Code sets out criteria for fair dismissal due to work performance as follows:

    i) The employee has to be aware, or could reasonably be expected to have been aware of the required standard;
    ii) The employee must be given a fair opportunity to meet the required standard, and
    iii) Dismissal was an appropriate sanction for not meeting the required standard.

    Performance standards fall within the employer’s discretion and, unless they are clearly unlawful or unfair, they will be considered reasonable. Employers must ensure the following:

    i) that employees are aware of the required performance standards for their jobs;
    ii) where appropriate, give the employee an evaluation, instruction, training, guidance or counselling needed to render satisfactory service; and
    iii) allow a reasonable time for improvement in performance.

    The employer is required to consider alternatives to dismissal such as adapting the job or finding another position for the employee more suited to his/her abilities. This depends on the nature and size of the employer’s business.

  3. ProcessAfter several consultations have been held with the employee and the employer is of the opinion that the employee is not meeting the required standards, the employer must conduct an investigation to establish the reasons for the unsatisfactory performance. In the process the employee has a right to be heard and state his/her case, although a formal hearing is not required. The employee must be informed of what the employer is proposing to do and given sufficient notice to prepare a response. The employee has a right to be assisted by a trade union representative or a fellow employee but not an attorney. The employer must ensure that the employee is aware of his/her rights.

    A follow up consultation must be held after the time period given for meeting the employer’s standards has elapsed and the employer has had an opportunity to evaluate the employee’s performance. The employer must communicate to the employee whether he/she has succeeded or failed in meeting the employer’s standards and keep a written record.

    Once the final consultation is held and the employer, having considered all the alternatives, is of the view that dismissal is an appropriate sanction, the employee may be fairly dismissed.

    Should you need additional assistance in dealing with this process or the dismissal procedure for misconduct then please do not hesitate to contact Linda Stephenson or Hayley Langdon directly.