Unsatisfactory work Performance & the Requirement of Warning ( Common Law Case)

 
Introduction

The employer must establish sufficient circumstances justifying dismissal such as unsatisfactory work performance, redundancy or misconduct.

The courts do recognize the employers’ rights to be free to employ or discharge whomsoever they please but the courts also balance it out with the employees rights who obviously seek reasonable permanency of tenure.

The employer must thus offer to such an employee:

1. warning about his/her work performance
2. offer sufficient opportunity to improve
3. only after the above is complied  with & should the performance remain unsatisfactory would the dismissal be justifiable.

 International Labor Organization Convention No.158 of 1982

 " The employment of a worker shall not be terminated for reasons related to the worker's conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity.“

Cases:  

         a. S. James v. Waltham Holy Cross

         b. Rooftech Sdn Bhd v Hoo inn, Penang

         c. I.E Project Sdn Bhd v Tah Lee Seng

         d. Pacific Forum Line Ltd v New Zealand Merchant Service Guild

 

The Reasons for Unsatisfactory Work Performance

Many reasons or excuses could be advanced to explain unsatisfactory work performance. Alternatively, they may have simply lost interest in their job or distracted by other pressing concerns. If an employee's work performance does not improve within the period so specified, it would be safe for the employer to take the step of dismissing that employee.

The type of warning and the length of period for correction or improvement varies depending on the particular case.

                (case of Bashforth v. Provincial Steel Company)

Failure to give warning may not only render the dismissal procedurally unfair but goes to the very root of the employment contract and thus the court may set aside the dismissal.

                ( case of Pascoe v. Covic Motors Ltd)

When is a Warning Effective 

A warning is not a magic word creating a ground for dismissal. It is rather a step fairly taken to enable a dismissal to be averted. When the complain of incapability which is made is one that could or might lead to improvement, in such circumstances, it is certainly right that the warning should be given.

The employers intended warning must actually be communicated as such. Any attempt to soften the impact of the warning or dress it up as something else will expose the employer to the risk of failing to give any warning at all.

Once the warning has been given and if there has been no improvement in the work performance, the step to dismiss an employee would be justified.

Exception of Warning

Failure to give an employee warning may sometimes not automatically make the dismissal unfair, particularly if it can be shown that the employee is incapable of improving or already knows clearly what is expected or that the giving of a warning should have made no difference to the result.

    (case of Bedford Investment Ltd v. Northern Hotel)

An employee holding a management position may know the employer's expectation of him. In such a case, failure to attain such standards may warrant dismissal without warning.

   (case of James v. Waltham Holy Cross)

   (case of Littlewoods Organization Ltd v. L.N.)

When they have demonstrated their incompetence or inability to establish the skill or professional capability expected of them, the employer is not bound to retain them and would be justified in dismissing them without the requirement of warning.

Poor Work Performance & Alternative Employment or Training

The employer may provide the employee whose work performance is deteriorating with necessary training, counseling or even other alternative employment. It is within the discretion of the employer. A responsible employer who obviously uses all means to enhance his productivity resorts to improve the employees’ skill and capability for the said goals.

   (case of Trotter v. Telecom Cooperation NZ)

      - Judge Goddard: Possibility of redeployment an employee whose work performance had failed to meet the employers expectation.

   (case of Garland v. McHerrons) 

      - Judge Palmer: Expressing his reservation with the possible redeployment.

Employer to Justify The Unsatisfactory Work Performance

 

The dismissal must be both substantively and procedurally justified. The onus of showing justification for dismissal lies on the employer. The employer must adduce convincing evidence to establish deterioration of work performance.

    (case of Marlborough Harbour Board v. Goulden)

      - Cooke J: The obligation of mutual fairness as characterized in the contract of employment.

The test for unsatisfactory work performance is whether a reasonable employer would have been justified in all the circumstances. The standard of competence is a balance between the subjective assessment of the employer and the objective evidence of capability.

    (case of Garland v. Mcherrons) 

      - Palmer J: set out certain requirement to be met in establishing justification of dismissal on such grounds which includes the employers showing reasonable believe, and did honestly believe

  

Conclusion 

The courts have begun to develop the law so as to provide greater protection for employees, particularly in the area of dismissal as this involves depriving a person of his livelihood. There is now a trend moving towards an affordability or natural justice to a person whose rights may be affected by a decision.

International recognition of the principle of fairness and the rule of warning includes recognition by the courts, Labor Organization Conventions and the like. However, circumstances do exist in which the requirement of warning can be done away with and this is seen in cases where employees do not need to be told what to do.