The law is fairly clear: an employee can be dismissed if their performance doesn't meet the employer's reasonable expectations. But an employer dismissing for poor performance must show it made reasonable efforts to work with the employee first. The employer must:
- set a clear and reasonable standard of performance
- communicate the expected level of performance
- measure the employee's performance
- take appropriate action to address any concerns
- allow a reasonable time for improvement
Warnings must be clear and documented
What counts as "appropriate" action depends on the circumstances. But the employer must clearly warn the employee that their performance is unacceptable and will lead to dismissal if it isn't fixed. It is usually appropriate to offer some help as well, through coaching, training or similar efforts.
Clear documentation is essential. Vague verbal comments that an employee isn't meeting expectations, or should improve, are not enough. Employees must be told in no uncertain terms that their performance is unacceptable and will lead to termination if it doesn't improve.
Where employers go wrong
Many supervisors and managers have never been trained in performance management, and are reluctant to have the awkward conversation and give negative feedback. Most people avoid conflict whenever they can, even if it means accepting mediocre performance.
As a result, poor performance reviews are rare. Most reviews are average, saying the employee is "meeting expectations" or similar. Even when there are real concerns they are seldom raised, and when they are, the language is so watered down the message is lost. This is where many employers weaken any case they had for just cause.
When a client wants to dismiss an employee for cause for performance, the first thing to ask for is the employee's file, especially their performance reviews. Even when the employer says the employee has been a poor performer from the start, the reviews often describe an average employee, and the file shows regular raises and often bonuses. There are no notes about performance concerns and no warnings that dismissal could result. Some managers have even given references, or LinkedIn recommendations, praising the employee's work.
The bottom line
It is possible to dismiss an employee for performance. But if you want a reasonable chance of proving cause, all managers and supervisors must be trained in performance management.
Identify concerns, discuss them with the employee and document them clearly. Warn the employee that dismissal may result if their performance doesn't improve enough. Letting a poor performer "slide under the radar" with average reviews, routine raises and even bonuses weakens any case for summary dismissal, and positive reviews can eliminate any chance of convincing a court that just cause exists.
If you can't prove just cause, you can always end the employment relationship with appropriate notice or pay in lieu of notice, though that may be costly.