For dismissal to be lawful, it must be substantively justified and must be conducted in a procedurally fair manner. Straightforward and objective guidelines can assist an employer avoiding being caught up in the subjective reality of employee issues.
The most cost-effective strategy when faced with an employee issue is to seek legal advice. This will ensure the appropriate steps are taken from the outset which will reduce the risk of a claim of personal grievance for unjustified dismissal. The employer has the onus to show there is a genuine reason (or reasons) for a dismissal.
This is the process of disestablishing a role. While it may be unsettling to all concerned, it is advisable to call a meeting with all staff in the particular role providing them with a letter giving reasons why redundancy is being considered. The letter should set out
• why the company is looking at restructuring
• selection criteria for redundancy
• a proposal for consulting on making the position redundant
• an opportunity for employee feedback
• a timeframe for consultation and
• options if the proposal is implemented, i.e. there is the prospect of redundancy.
It is possible for an employee to claim that termination by reason of redundancy is unjustified leading to a personal grievance.
An employer must exercise proper care in its evaluation of a business situation to make the position of an employee redundant. In other words an employer will need to show that its decision was one open to a fair and reasonable employer and based on sound accurate information.
Performance based approach to dismissing an employee
If there is a performance management process set out in your employment agreement this process should be followed to ensure you to do not act in conflict.
If the ground for termination is poor work performance or some less serious form of misconduct, the employer cannot dismiss the employee unless there have been previous warnings about the poor performance or misconduct. The accepted procedure is usually to first give an oral warning then a formal written warning, then a final written warning, and then if necessary, dismissal.
For performance issues it is best to hold a meeting to address your concerns about the employee’s performance and create a performance improvement plan. Give the employee prior warning of the time and nature of the meeting.
At the meeting:
• clarify the objectives of the role. Discuss current and past levels of performance
• develop an action plan of remedial steps to resolve the gap between the performance required and the performance provided
• identify a reasonable period of time for improvement
• specify the consequences of failing to meet the required standard
• give the employee an opportunity to comment on the process
• provide the employee with a written account of what was discussed.
Monitor the employee’s performance in the areas identified and hold the next performance meeting. If the employee fails to meet the specified performance criteria, give them an opportunity to explain. The previous steps in the first meeting should also be covered. The objective should be discussed and a new review date.
This process can be used to rectify performance problems. At least three consecutive review periods should be held before the employer should take steps towards termination.
Dismissal without notice for serious Misconduct
In this instance the employee can be dismissed without receiving an earlier notice or warning. However the dismissal must still be procedurally fair. The employer will be expected to have carried out a full investigation into the alleged behaviour. The employee should be informed about the exact nature of the allegations and that dismissal is a possible outcome.
This post was published in the FMCG Business magazine.