Donald Trump, in his reality television show The Apprentice, uses the slogan You’re Fired with conviction and with considerable frequency when someone does not perform to the desired standard.
However, like several things on television, it is often wise not to wholeheartedly or too quickly emulate what is exhibited. While pursuits such as providing value to ever-demanding customers, maximising organisational competitiveness, facilitating managerial and non-managerial performance, must be the ongoing mandate of today’s employers, fairness in the termination of the employer-employee relationship is demanded by the Employment Rights Act (ERA). When I speak of employee, I am referring to anyone who functions in a managerial or non-managerial position within the organisation.
Under section 29(1)-(3) of the ERA, an employer is entitled to dismiss an employee for deficient capability (skill, aptitude, health or other physical or mental quality); inappropriate conduct; redundancy; the fact that continued employment of the employee would be contrary to the law; and/or “some other substantial reason of a kind such as to justify the dismissal of an employee . . .”
However, section 29(4) of the ERA qualifies the employer’s right of dismissal by mandating that dismissals are fair. Such fairness not only requires that the reason is fair (substantive fairness) but that the process by which the dismissal is executed is fair (procedural fairness).
Where there is the occurrence of deficient capability and inappropriate conduct, the act generally requires that the employer takes progressive action such as discussing concerns/counselling, verbal warning(s), suspension and disciplinary hearing, before utilising the mechanism of dismissal.
The legal policy is essentially that an employee should have a chance to know his/her employer’s concern(s), correct the concern(s), and state his/her position before being dismissed.
The aforementioned performance management and disciplinary actions, which are encompassed in the Standard Disciplinary Procedures (Part A & B of the Fourth Schedule to the ERA), should not necessarily be seen in all cases as a linear route but may be determined by the particular circumstances of each situation.
For example, an employee’s first exhibition of deficient capability and/or inappropriate conduct (or omission) may warrant a response that is more serious than discussion/counselling and a verbal warning; but less serious than dismissal.
Furthermore, the ERA does not hinder an employee from also being dismissed without a disciplinary hearing for the first occurrence of the act and/or omission, which constitutes gross misconduct.
Such summary dismissal can be invoked via the Modified Disciplinary Procedures in Part C of the Fourth Schedule to the ERA. However, a prudent employer should always recognise that unless an employee exhibits grossly inadequate performance, which results in significant financial, reputational and/or other loss to the business, dismissal should not be the immediate response to a first instance or even undocumented multiple instances of such performance.
Furthermore, rushing to dismiss an employee for inadequate performance that has not been drawn to the employee’s attention, could represent both a breach of procedural fairness and natural justice.
Such a breach may subsequently subject the employer to a claim by the employee for unfair dismissal under section 32 of the ERA, and an order by the Employment Rights Tribunal for; re-engagement (in a different job but in the same organisation); or compensation under Section 33 of the ERA.
Therefore, where performance concerns arise, the employer through the employee’s immediate supervisor (advisably with the assistance of an internal or external human resources/industrial relations professional), should convene a performance management meeting with the employee.
During said meeting the following should be undertaken: reiterate the pre-existing performance targets; reveal the employee’s performance vis-a-vis the performance targets; clearly and empathetically discuss the negative impact associated with the employee’s inadequate performance; ascertain the employee’s perspective regarding why his/her performance has been inadequate; ascertain the employee’s perspective regarding what could be done to get his/her performance to an acceptable level; and jointly establish a performance improvement plan which includes mutually agreed actions related to training, mentorship, and timelines for the achievement of the agreed actions.
The particulars of the performance management meeting and the resulting performance improvement plan, which should be documented and signed off by the employee’s immediate supervisor and the employee, can then serve as a basis for the following:
A benchmark for a subsequent performance review at a specified future date, for example, three months; a basis for any necessary extenson of the improvement period; and/or evidence for any subsequent disciplinary hearing.
Since it could be shown that the employee’s performance has not adequately improved despite joint efforts to faciliate improvement, then disciplinary action(s), ranging from written warning(s) to dismissal could be fairly administered.
An employer’s trump card should be that every employee is afforded the statutorily-prescribed fairness and due process before a dismissal is invoked on the grounds of inadequate performance.
Remember that while Donald Trump makes money when he says “you’re fired”, it could cost the employer if done over-eagerly.
• Calvin Husbands is Labour management advisor at the Barbados Employers’ Confederation.
