Date: April, 2012
Author: Daniel Lublin
In this column, I have consistently opined that incompetence is not usually cause for dismissal and that poor performance should not affect severance. But I must admit that the law is not always this clear. What happens when a new recruit cannot perform the job he or she was hired for, despite training, patience and an investment in their performance? Unsatisfied clients have criticized him or her and you regret giving them the job in the first place. This human resources dilemma is not isolated – both employers and even other employees complain about it often.
The biggest difficulty is although this employee should be fired immediately, most employers allow her to linger, dissuaded from taking action because of the potential severance costs and the lost time and investment to find another suitable replacement. As a workplace lawyer and a business owner, I can say that mostly this just compounds the problem, since their performance is unlikely to ever satisfactorily improve. The following are some alternative options employers utilize to deal with this problem:
Is the employee “probationary”?
If so, he or she can be fired with impunity. But note that this label cannot be imposed because the employee turned out to be incompetent. Most employers fail to appreciate that, in order to create a probationary employee, the employee must agree to this stipulation in an employment contract and before he or she begins any work. Otherwise it is too late.
Spend the time required to correct his or her performance.
This option is too often overlooked. If an employee is underperforming, they most likely know it too. It is their job to ask for assistance as much as it is the employer’s job to clearly delineate what standards are required. This process involves more than a performance meeting. The employee should job shadow a supervisor.
Make it clear to him or her that the job will soon come to an end.
The goal is to provide enough time for the employee to look for other work while they still have a job. If this occurs quickly, then she can gracefully resign. However, if this advice is communicated improperly, it could easily backfire into a lawsuit. The key is to get good advice yourself.