The Employment and Labour Relations Act requires the presence of both substantive and procedural reasons for terminating an employee.
Incompetence is one of several valid grounds for terminating a Contract of Employment. Rule 15 (1) of the Employment and Labour Relation (Code of Good Practice) G.N. No. 42 of 2007 lists three instances constituting incapacity. The said Rule is reproduced below for ease of reference.
“15 (1) An employer incapacity may be due to ill health, injury or generally poor work performance”.
(2) each reason needs to be dealt with on its own merits, and a fair procedure applied
in each case.
This article will focus on procedures for terminating an employee due to poor work performance. To establish just cause for termination due to poor performance, the employer must show more than mere dissatisfaction with the employee’s performance. The employer should ensure the following: –
- That there existed a performance standard;
- That the employee in question was aware of the performance standard;
- That the said performance standard was reasonable;
- That the employee in question failed to meet the said performance standard.
A sure way for employers to satisfy the above requirements is to have clear job descriptions for each employee and to set periodic goals for employees to achieve within a specified period.
Of importance to note is that the Law requires performance standards to be reasonable and known to the employee. The goals mentioned above ought to be within the employee’s capability to achieve and must be communicated clearly to an employee.
The test for fairness of reasons
In order to justify the termination of an employee due to poor work performance, the Law sets the conditions that ought to be fulfilled for substantive fairness in terminating a particular employee. These include: –
- Whether the employee failed to meet a performance standard;
- Whether the employee was aware or could reasonably be expected to have been aware of the required performance standard;
- Whether the performance standards are reasonable
- The reasons why the employee failed to meet the standard and
- Whether the employee was afforded an opportunity to meet the performance standard.
The test of the fairness of the procedure
Before an employer terminates an employee for reasons of poor work standards, the employer must do the following:
- The employer must show that the employee failed to meet a performance standard. The Law requires the employer to investigate the reasons for unsatisfactory performance as doing so will reveal the extent to which the employee causes such unsatisfactory performance.
- The employer is further required to give appropriate guidance, instruction or training, if necessary, to an employee before terminating the employee for poor performance.
- The employer must also give the employee reasonable time to improve. This time to improve, however, may be dispensed with where the said employee is of a managerial cadre.
- Rule 18 (4) of G.N. No. 42 of 2007 establishes a clear obligation on the employer to warn employees that their employment would be terminated if no improvement is seen.
- Where the employer has afforded the employee an opportunity to improve, but the employee fails to do so after issuing a formal warning, the employer is mandatorily required by Law to, before finalizing the decision to terminate the said employee, call a formal meeting with the employee. At this meeting, the employee has the right to representation, which should be communicated to said employee.
Summary
Aside from the procedures established under the Law, in instances where organisations have codes of conduct that provide for a procedure to be followed before the termination of employees, such procedures become binding upon employers.
A deviation from said procedures may result in Courts finding that termination was unfair.
