Where poor performance is shown to be reason for termination, the employer is placed at a high level of proof as outlined in Section 43 of the Employment Act. Where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of Section 45.

The employer must show that in arriving at the decision of noting the poor performance of an employee:

  1. Whether the employee was aware of the level of job performance required including whether the employee was provided with a job description and clear job expectations,
  2. Whether suitable tools and instruction or supervision was accorded to the employee to enable him reach the standard,
  3. Whether an employment policy or practice was put in place to measure good performance as against poor performance,
  4. The measures that were in place to enable them assess the performance of each employee and further, for example, a Performance Improvement Plan (PIP),
  5. The measures they have taken to address poor performance once the policy or evaluation system has been put in place; it will not suffice to just say that one has been terminated for poor performance as the effort leading to this decision must be established,
  6. If after the appraisal, an employee is given time to improve on his performance, having been aware of the improvement areas as well documented in the performance appraisal and having been informed of a specific time frame within which to improve, the appraisal must include a warning that should the employee’s performance not improve his employment would be terminated,
  7. demonstrate that before terminating the employee all efforts necessary were put in place to support the poor performing employee

Beyond having such an evaluation measure, and before termination on the ground of poor performance, the employer is required to:

  1. Explain to the employee, in a language the employee understands, the reason for which the employer is considering termination. The employee is entitled to have another employee or a shop floor union representative of his choice present during this explanation.
  2. As well as conducting the explanation in person, give a notice outlining in detail the instances of poor performance, the support the employer has given to the employee to enable him improve in the specified areas, the right of the employee to defend himself, the right to representation and the time within which the employee should give his response to the notice.
  3. Observe the rules of natural justice by notifying the employee of the impending hearing and the grounds for the disciplinary hearing to enable the employee prepare to defend himself.
  4. Hear the employee’s representations and the representations of the person who has accompanied the employee to the disciplinary hearing, if any.
  5. Notify the employee of its decision to terminate or retain him after considering his defense.
  6. In the event a decision is made to terminate an employee on the reasons for poor performance, the employee must be called again and in the presence of another employee of their choice, the reasons for termination shared with the employee.

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