Perhaps the most common situation which arises in the workplace, where an employer has to contemplate the termination of an employee’s employment, relates to perceived deficient performance. It is not uncommon for employers to adopt a mind set that they should not have to pay severance, where performance is so lacking that it reaches a level or threshold where termination of employment is contemplated. It is, in fact, counter-intuitive, for many employers, to consider paying severance to non-performers.
Other employers, perhaps, adopt a more practical view and accept the notion that termination, even performance related termination, requires an appropriate severance arrangement. These employers tend to consider providing a severance package to be expedient, part of the cost of doing business, and an integral part of the management prerogative to terminate employment, without dealing with the necessary performance management steps which could, in the right circumstances, lead an employer to terminate for cause, and without a severance arrangement.
The following “rules of engagement” provide guidance as to when, or in what circumstances, an employer may assert cause for termination in respect of performance related issues, and avoid the obligation to pay an appropriate severance arrangement:
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(1) Each case must be decided on its facts;
(2) An employer’s displeasure at an employee’s performance is not enough to warrant dismissal. There must be some serious misconduct or substantial incompetence;
(3) The onus of proving just cause rests with the employer;
(4) The performance of an employee must be gauged against an objective standard;
(5) The employer must establish:
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(a) The level of the job performance required;
(b) That the standard was communicated to the employees;
(c) That suitable instruction and/or supervision was given to enable the employee to meet the standard;
(d) The employee was unwilling to or incapable of meeting the standard; and
(e) The employee was warned that failure to meet the standard would result in dismissal;
(6) Where the employee’s performance is grossly deficient and the likelihood of discharge should be obvious to the employee, warnings are not required;
(7) While the standard of incompetence to warrant discharge for cause is severe, the threshold of incompetence necessary to warrant dismissal for cause is significantly lower where dismissal is preceded by many warnings, indicating unsatisfactory performance;
(8) An employer who has condoned an inadequate level of performance may not later rely on such condoned behaviour as a ground for dismissal.
The net result is that employers may, in the right circumstances, terminated without a severance package, for performance related deficiencies. In order to do so, however, the employer must invest time, diligence, have strong procedures and policies, and be able to present a well-documented case. The onus of establishing cause for performance related deficiencies increases with the length of service of the employee, as well.
As a result, and considering the substantial height of the legal bar required to achieve performance related cause for termination, most employers default to providing a severance package to employees whose performance was lacking. Only those with strong performance management systems are up to the task of attempting to establish just cause for termination.
Norman Grosman tackles your employment law dilemmas regularly on Workopolis. More information about him and his legal services can be found on his website grosman.com
It was nice to read the above article; however, happening at my work from today prompted me to write you.
There was a new hire in medical department of an American college I work for four years as an instructor. She got the job even though she did not fulfill the employment requirements. Most of the management in this institution is Italian.
This person was teaching 3-4 students in the evening for the past few months. She got all the support, advice, written (by me) teaching materials to lecture. She started rumors accusing me of coupling with the students and actually, she was the one who was very private with them. Today, she got a reward of excellence for the month. She is so disproportionately closed to the Italian management staff – this institution is losing all the business like behavior and credibility as well. What can really happen within the workforce and what should happen as written in your article are two diametrically opposite situations. Thank you.
I couldn’t agree more with Stella’s closing sentiments. In fact, blatant favourtism and unequal treatment based on personal bias is still rampant in the workforce. I have worked for two seperate companies where these were prevalent factors. Additionally, in regards to the incompetency article, I have experienced grossly inadequate, ineffectual, and surrealistically incompetent management that would be difficult for anyone to believe if they hadn’t witnessed it firsthand. These are very often the same people that use their power and influence to convince their superiors of the “incompetence” of another employee. The intent is to remove people they perceive as a threat, or take a pesonal dislike to, usually owing to the fact that these people are aware of their gross ineptitude. There needs to be some very serious reforms to the rights provided for employees under legislation by the Ministry of labour. The state of affairs as they currently exsist allow far too much power pla!
ced in the hands of employers to terminate people for B.S. reasons, or no reason at all. I have seen good people put on the unemployment line time and time again by immoral, corrupt, and ridiculously poor managers, many of whom apparently received promotions for no other reason than their efficency in puckering for the posteriors of others. An old complaint, I realise, but still all too true, in many instances. Companies that employ this kind of tactic are usually only damaging their own interests as they lose truly good employees disgusted and dismayed by such idiocy. They find themselves stuck with what they paid far too much for, and people of far less worth to do the essential work. It isn’t hard to understand why unions still exsist, and if I had my dream, there wouldn’t be a company allowed to operate without one. Companies need to realise that their workers are their greatest asset, pay and provide for them accordingly.
After reading this, I often wonder…what about the incompetence of management? I know tons of situations where co-workers couldn’t do their job right to save their life, however, I’ve also been running into a lot of situations where I watch management show just how much they shouldn’t be in that position. For example, favouritism for telling one employee to go chitchat and be close with members of a country club, while to another employee that they can’t really get too close. Another example would be the hypocrisy of management when they give everything to themselves, and take more and more things away from employees when even the employees themselves are aware of how things are running. Is it really appropriate for management to have an affair at a staff Christmas party with another employee? Or to be drinking themself silly during work hours?
I sure wish I knew if it was possible to change the way these places are run and actually get people who don’t personalize against employees from their own incompetence to doing a proper job for once. Maybe if that happened…it wouldn’t be so hard just to find a decent job that isn’t run by someone who will dismiss you for any given reason.
I am in complete agreement with Smythe and Yumi; the call centre industry is NOTORIOUS for favouritism and blatant incompetence of management. As what some of my co-workers and I referred to ourselves as `lowly schlubs`, we were in a small minority who were competent at our jobs and pleasant and very polite to the customers. Several of us were fired, for no apparent reason (myself included) by a manager who had been out on maternity leave for all but a month of my whole career there, who decided to re-assert her authority and fire a large portion of competent employees for various apparent infractions; 2 minutes late coming back from lunch, too long talking on a call to a customer, forgetting to ask an elderly person for an email address, all silly things that were easily fixable given warning and time to improve; the manager taking back her position, who knew none of us since she had not been working with us at all, and with nearly no warning, as the replacement manager h!
ad not said any negative thing to or about any of us, fired us. Apparently, we were the small group who did not pucker to the right behind…
All call centres are like this; competent people are passed over or not even interviewed time and again for various internal promotions, but the jerk who has been witnessed hanging up on customers rather than taking a call and even cursing other customers and calling them stupid get the promotions.
at another call centre I was in, I had a tempoary assistant sales specialist position that was coming up for renewal; after having recently won an award with the sales specialist team for higher than ever recorded sales for an annual contest, I was passed over for the re-hire and instead the position went to a girl (who is very nice and competent also, but had not had experience in the position like I had) who was tall, thin, and attractive; I myself am a more petite person and while not large, I have a couple of areas of imperfection and I am more average in looks, I guess. Anyway, it was quite obvious the supervisor doing the hiring was not including his brain for the interview…I was givent he excuse that I did not have enough accuracy, even though the original 6-month term was extended to 10 months since the department was doing so well having me there, and sales had gone up. Even though the position was more of a lateral move, it felt more like a promotion since I was !
not just another schlub on the phone, but part of a more important team, even though the pay remained the same. I was unable to get promotions after that because that supervisor basically ruined ever even getting an interview for another internal position after that.
There should be laws about incompetence in management and laws against favouritism and hiring the best kiss-a** rather than the person who can actually do the job. Just because someone has an MBA, it does not mean they can play well with others…
this is why i am working toward starting my own business; I`m a person with skills and common sense…look out world, here`s someone who is actually competent at her job!! Best to be my own management.