Underperformance means failure to perform work below the employee's own potential and poor performance. Underperformance is usually a case of a worker not achieving what he or she should have achieved, even though he or she has been working perfectly normally. Underperformance can take the form of persistent failure to complete tasks, poor quality of work, persistent errors or failure to meet targets.
Tackling underperformance - early intervention
Since it is rarely possible to terminate an employment contract on the grounds of underperformance, the intervention is usually one that seeks to correct the employee's behaviour. Only if the employee fails to correct his or her behaviour can dismissal be considered. Addressing underperformance is usually a step-by-step process, involving at least the following steps:
1) management and legal procedures, i.e. setting objectives, monitoring, issuing orders and instructions (general or personal),
2) the use of the probationary period procedure at the beginning of the employment relationship,
3) comment,
4) a written warning of imminent dismissal; and
5) dismissal if the conduct for which the warning was given is repeated.
When tackling underperformance, remember the principle of equal treatment: employers must treat employees equally, whether it's through a warning policy, setting targets or otherwise tackling underperformance. In the context of underperformance, the principle of equal treatment is particularly relevant when assessing and comparing employees in recruitment and job monitoring. The probationary period plays a key role in assessing aptitude and suitability and a probationary period is available in the event that underperformance is identified during the probationary period.
The employer has a duty to provide induction training. It is therefore difficult to plead underperformance if the underperformance is in fact due to a matter for which the employer should have provided training. Nor can an employee really underperform if he does not himself know the objectives and level of performance expected of him.
On the other hand, targets are meaningless if they are not evaluated and monitored. The objectives set for the employee must be measurable, realistic for the employee to achieve and the employee must be given sufficient training and support to enable them to achieve their objectives.
However, it is always important to address underperformance, as it is difficult to address the underperformance of one person later if the same behaviour has been allowed with another employee (principle of equal treatment).
However, before warning and dismissal, the employer must use the so-called soft means: (1) the employer has the right to direct (the right to assign tasks, instruct, set targets and monitor), (2) under the right to direct, underperformance must be addressed, e.g. by clarifying targets, training and induction, monitoring and intervening if problems occur, and (3) warnings before issuing a warning with the threat of dismissal.
When an employee's conduct is interfered with, the employee should be consulted before any decision is taken, i.e. given the opportunity to have a say in the decision. This is particularly important in warning and dismissal procedures.
Underperformance and probationary period
Underperformance during the probationary period is a lower threshold for dismissal. An employer can terminate an employment relationship during a probationary period if the employee does not meet the requirements of the employment relationship. The same right applies if the employee considers that the job is too challenging. For the employer to be able to terminate the probationary period, the dismissal must not be discriminatory or otherwise unfair. The probationary period allows the employer to assess the employee's performance without the same lengthy process as in a permanent employment relationship.
Warning and dismissal
If the employee fails to improve his/her performance following further definition of objectives, training and induction, follow-up and observations, a written warning with the threat of dismissal may be issued. A warning must always be given before an employee can be dismissed and is intended to give the person the opportunity to correct his or her behaviour. The warning must identify the conduct to be reprimanded and give the employee a reasonable period of time and a real opportunity to correct the conduct.
If the behaviour is repeated/continues after the warning, i.e. if the person does not correct the behaviour, he/she may be dismissed. There must always be a ”relevant and serious” reason for the termination of the employment contract. The assessment is an overall assessment - and in most cases very difficult. If the underperformance is due to the fact that the employee is not achieving the objectives set for him or her and the employer is considering dismissing the employee, the employer should be particularly careful and it is advisable to consult a lawyer with experience in employment law.
In assessing the relevance and seriousness of the reason, the overall assessment must also take into account the number of employees employed by the employer and the overall circumstances of the employer and the employee. However, before dismissal, the employee must be consulted and it must be ascertained whether he or she can be redeployed and/or trained for another position within the undertaking.
Summary
Tackling underperformance is a process that involves a step-by-step approach to improving employee performance, from setting targets and issuing reprimands to written warnings and eventual dismissal. The employer must apply equal treatment and the employee must be consulted before more serious action is taken. In the early stages of an employment relationship, a probationary period allows for an assessment of the employee's performance and facilitates termination of employment if expectations are not met.
The case law on dismissals for underperformance is biased in favour of the employee. Before an employer takes any action to terminate an employment relationship on the grounds of underperformance, it is advisable to consult a lawyer specialised in labour law, as underperformance is not a clear ground for dismissal.
Jari Sotka
Lawyer, MBA
Tel. 040 544 0610
[email protected]
Amos Attorneys at Law Oy
www.amoslaki.fi
The author has worked as a lawyer and advocate for more than 25 years, focusing throughout his career on preventing and solving legal problems for small and medium-sized enterprises.