February 27, 2008

Performance Related Dismissals

I recently read a report from the US about an employer who refused to let a worker’s parent be present at a “termination meeting” that she had called to deal with some “performance issues”.

That is quite interesting from a NZ perspective.

Here, caselaw under the Employment Relations Act has made it quite clear that an employee must be afforded opportunity to have advice, support, and representation throughout the
course of any disciplinary process. I get a substantial proportion of inquiries from the parents of employees who believe their offspring are being badly treated at work.

That is perhaps not surprising, in that it would be reasonable to expect that it will be the younger, less experienced and less self confident and assertive members of the workforce who will be most likely to be badly treated.

The “termination meeting” idea is also interesting from an NZ perspective. Here, any employer who summoned an employee to a “termination meeting” would risk a grievance for unjustified dismissal on the grounds that they had prejudged the issue of how the meeting would end and the performance issues would be resolved.

An amendment to s103 of the Employment Relations Act (now s103A) was introduced to make it clear that an employer must behave as a “good employer” rather than merely not behave unreasonably. Case law has since made it clear that the employer should ideally:-

  • Specify any performance deficiencies in some detail.
  • Afford the employee time, training and opportunity to remedy the deficiencies.
  • Give the employee ongoing and detailed feedback about their subsequent performance.
  • Notify the employee of continuing deficiencies in their performance and the possible consequences for their employment.
  • Give the employee opportunity to make submissions about the matter.
  • Consider the employee’s submissions.
  • Decide to terminate.
  • Give the employee opportunity to make further submissions.
  • Consider the further submissions.
  • Terminate.

A dismissal will not be held unjustified solely because the employer has missed out a minor step in the process, but missing two or three is risky, and conducting a process that is seen to be unfair is always fatal.