Dear PMSL
Employer’s question:
We have an employee who has a bad attitude and always has an excuse as to why something assigned to him isn’t done, or why he is nowhere to be found when he is needed. This has been going on for the past 2 to 3 years and we are fed up and now wish to terminate. Our employment contract states that in order to terminate, either party must give to the other 1 month’s notice or payment in lieu of notice. Is this all we have to do to terminate the employment contract of this staff member?
PMSL ‘s Answer:
An emphatic “NO”!
While this clause is in many employment contracts, or letters ( and just to make it clear, a letter of employment IS an employment contract) and it is often interpreted to mean just that all you need to do is just give a month’s notice and then terminate , it is not that simple in practice. A person’s job is regarded in our laws as his property and therefore can not be taken away without due process of the law. The process of termination must be governed by the Principles of Good Industrial Relations Practice and the Principles of Natural Justice.
These include:
- The employee must be told why he or she is considered at fault and given a chance to improve. Ideally, a warning letter or note should be given to the employee saying in what way he or she is deficient. In this case, repeated instances of work assigned and not done in spite of repeatedly having it called to their attention. Mention specific times and dates. It is preferable that this be done at least twice several weeks or months apart to give them a chance to improve. After all what you want is really performance, not to have to rehire and re-train.
- After the second letter and no improvement the employee must be told that they are being charged with negligence (or whatever the charge is) and disciplinary action will be taken.
- The right to be heard in one’s own defense before disciplinary action is taken is sacrosanct, so give them a time and date for the disciplinary interview to take place at which time they will be asked to explain what excuse they may have for non-performance and if there is any reason they can come up with why they should not be terminated.
- Due process – there must be a reasonable procedure established to deal with matters in dispute and the procedure must be followed.
- Length of service, disciplinary and work records, possible health and/or domestic difficulties should be taken into consideration in determining disciplinary penalties.
- The test of reasonableness must be applied.
- The likely consequences of breaches of discipline should be made known in advance to employees – preferably upon first employment, or upon formulation or change of the rule or consequences. This is why companies have rule books, so no one can say they did not know that it was against the rules to do whatever they are charged with.
- Disciplinary decisions must be made on the basis of evidence, not supposition or inference, and reasonable investigation into the matter must take place.
