For employers seeking to justify a dismissal for a performance-related problem, the employer should be in a position to explain the problem and how they dealt with it under the following headings:
They must be able to give an explanation as to how the problem came to light. It is not safe to presume that the problem suddenly materialized, particularly where an employee has service of any appreciable length.
The employer must be able to show that they carried out a thorough investigation as to the reasons why performance fell short of what was normally required. Again, it is not sufficient simply to show that there was a failure of performance and that disciplinary action resulted. It may later transpire that there was an obvious reason for the shortfall in performance. A thorough investigation will, or should, unearth such a difficulty at an early stage.
There must be a clear warning to the employee that he/she is falling short of the employer’s requirements. Emphasis on what is required of him/her should be made at this stage. Employers should avoid vagueness and, while a blunt warning may appear harsh, it is in both parties’ interests that there be no misunderstanding as to what was actually meant.
The employer must be able to show that the employee was counselled as to the need to improve and that assistance was offered to help the employee to improve.
The employer must be able to show that they monitored the response to the warning, not simply that the employee was left to his own devices until the employer came back at a later stage and expressed further dissatisfaction and imposed further disciplinary sanction.
If there is no improvement the employer must be able to show that they investigated as to why the warning, counselling and assistance had not given rise to the required improvement.
There must at some stage, if a dismissal was the result, have been a final warning that is clear and unequivocal as to:
what the problem was;
what was required of the employee;
the consequences of failing to meet the required standards; and if a dismissal is the expected result of the disciplinary sanctions.
An employer should not simply demand that the standards be met by a specific date but rather that the standards be met on an ongoing basis and maintained into the future.
The employer must have available evidence of the failure to meet the requirements of the final warning, that that evidence was put to the employee and the employee was allowed the facility of responding and making a case against dismissal before the final decision to dismiss was made.
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