The performance of one of your employees has dropped significantly in recent months and you are considering dismissing him for disciplinary reasons. How can you prove this drop in performance?
Grounds for dismissal
Cause. A continuous and voluntary decrease in an employee's normal or agreed work performance is grounds for disciplinary dismissal. However, in order for the dismissal to be valid, the reduction must meet three requirements:
- It must be continuous or have permanence over time, and not transitory or circumstantial, for example, because of a bad day.
- It must also be voluntary. If it is not, you will have to make an objective dismissal due to supervening ineptitude and pay 20 days' severance pay. Attention! You can therefore dismiss an administrative assistant who, for no reason, starts to process fewer delivery notes, order fewer documents and take fewer calls, as a disciplinary measure. But if the decrease is due to a health problem (for example, if osteoarthritis causes him to lose speed in performing his tasks), you must dismiss him for ineptitude.
- The drop in performance must be significant or serious. Attention! And therein lies another difficulty in justifying dismissal. See how you can defend yourself in court if your employee contests the termination.
To be taken into account
Factors. Your employer may justify disciplinary dismissal in the following way:
- Comparison. If you useperformance measurement systems for your workforce. Note. For example: if you produce tables or graphs comparing the sales of your salespeople and you detect that one of them has been reducing its sales, falling below the rest and below the average figure for the department, you will be able to prove the drop in performance.
- Objective data. If you do not have other employees on equal terms with whom to compare, analyse the employee's own past performance. Make a note. Thus, if your employee works in the warehouse, last year moved 15 pallets per hour and in recent weeks has only moved three (with no external circumstances to justify the decrease), you can prove the decrease in performance.
Recommendations
Willfulness. You must also prove your employee's wilfulness, whether caused by neglect of duty or failure to comply with your company's directives. Note. It is therefore advisable that you have sanctionedyour employee before dismissal:
- Sanction him in writing and remind him of the minimum targets to be met, or what performance is expected of him.
- It will be able to prove that, after the sanction, the conduct has not ceased (so it will be continuous) and that the person concerned has done nothing to reverse the situation (so there will be wilfulness).
Alternative. Depending on the nature of the work, one alternative is to introduce a termination clause in the contract that allows you to terminate the relationship, without compensation, for failure to meet set targets. This is valid if the objectives are reasonable and achievable. Note. Although this clause is common in the commercial sector (it is easy to prove that a certain level of sales is not reached), it is also valid in other sectors. For example, if a minimum number of orders is easily handled by each warehouse worker, the company can demand this minimum performancefrom the warehouse workers it hires.
The decrease in your employee's performance must be continuous, voluntary and relevant. Prove that these requirements are met by comparing your performance with that of your colleagues.