How to dismiss an employee for poor performance

If you have an employee who is not performing their role to the standard you require, you need to find out whether there is any genuine explanation for their poor performance (e.g. illness, stress, or uncertainty about the requirements of their role).

If there are no genuine explanations for their poor performance, then you may implement a performance improvement plan in which you clearly outline what is expected of them in their role, and require them to meet those expectations, with your support, within a reasonable period of time.

If at the end of that period the employee is still not performing to the standard you require, you may initiate a disciplinary process. That process may result in a warning, a further performance improvement period, or dismissal.

It is best to think of the performance improvement process in three phases, as outlined below.

Please note that the process suggested here will not cover every situation that may eventuate. If you get stuck, get legal advice. This process should be not construed as providing you with that legal advice for your specific situation.

Phase 1: Initiating the Plan

1 Write a Letter to the Employee

The purpose of the letter is to outline the aspects of the employee’s performance that concern you. The letter should include:

a list of the aspects of their performance causing you concern;

a list of any documents you are relying on to support your concerns. Be sure to enclose copies of these documents when you give the letter to the employee;

the plan you propose to improve the employee’s performance. This should include the period of time you are going to give the employee to improve, the measurable targets you expect them to attain by the end of that period, and the assistance you will offer them during that period to meet your expectations;

a statement that you have not made a final decision on whether to proceed with the plan. The letter should emphasise that you will not decide whether to proceed with the plan until you hear and consider their response;

a statement that if you do go ahead with the plan and they fail to meet your expectations, then you may take disciplinary action, up to and including dismissal. This ensures the employee is under no illusion about the consequences that may follow if they are found to not meet your expectations. If you are not contemplating dismissal, but only a warning at worst, then you should state that in stead of referring to dismissal as the worst possible consequence;

a request to meet with the employee at a specified date to hear their response to your concerns and your proposed plan. This should be at least two working days after the employee will be given the letter, in order to give them sufficient time to consider their response and seek legal advice or arrange a support person;

an invitation for the employee to bring a support person or representative to the meeting if they wish to do so; and

details of who to contact if they wish to ask anything about the process. It may be that they need to contact someone to reschedule the time of the meeting if it is not suitable for them or their support person, or because they wish to give their feedback in writing instead of meeting with you.

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2 Meet the employee to Give them your letter

At this meeting, read through the letter you drafted in the previous step and hand the employee a copy. End the meeting by reminding the employee that you expect to see them at the next meeting to hear their response to your concerns about their performance and by asking whether they consider the proposed plan fair.

If the employee starts to explain themselves, stop them and tell them that you do not want to hear their side of the story until they have had time to consider the matters raised in your letter and to get legal advice.

3 Meet the Employee to hear their response

At the second meeting, start by reiterating your concerns raised in your initial letter; then ask for the employee’s response.

The purpose of this meeting is to hear the employee’s response to your concerns and your proposed plan to address them. So you should listen carefully and take notes of what the employee says (it is best if you can have someone with you to take notes, so that you can concentrate on listening to the employee).

If there is anything in the employee’s response that is unclear to you, ask the employee questions. But take care when asking questions to not give the impression you have already made up your mind.

Your employee might deny they have performance issues and that your proposed plan won’t be needed if you accept their explanation. Because you should not reach a final decision about their explanation until after the meeting, you should still ask for your employee’s response to the proposed plan. That way, if you don’t accept their explanation about whether they have performed issues, you can still move forward and decide whether to implement the plan or not.

At the end of the meeting, summarise what you believe you have heard the employee say and indicate when you wish to reconvene to advise whether you will go ahead with the performance improvement plan as proposed.

4 Consider the Employee's Response

If, despite what the employee has said, you are of the view that their performance is unsatisfactory, go on to consider whether you think there is anything about the performance plan that you have proposed that needs changing.

In particular, take account of any comments the employee has made in relation to the length of the performance plan period.

You need to ensure that you give the employee a fair opportunity to demonstrate improvement. What is fair will vary from case to case, depending on what is being asked of the employee, but your expectations must be achievable if the employee applies themselves to the task.

5 Meet the EMployee to give your decision

At this meeting, explain to the employee what you thought about their responses. If despite their responses you go ahead with the performance plan, confirm the details of the plan and explain any changes made to it after taking the employee’s feedback into account. End the meeting by advising that you will write to the employee to confirm your decision.

6 Write a letter to the Employee Confirming your Decision

Assuming you proceed with a performance plan, the letter should include:

a summary of the employee’s responses;

what you have decided and the reasons for your decision;

the standards you expect of the employee;

the measurable targets that you expect the employee to attain by the end of the performance improvement period; and

the support that you will give to the employee to help them meet those targets. This may include meeting with them regularly and providing training.

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Phase 2: Implementing the Plan

7 Meet your obligations under the plan

During the performance improvement period be sure to do what you agreed you would under the plan. That may include:

meeting regularly with the employee to give them feedback on their progress. In addition to this, be proactive about letting the employee know if you think they are still not meeting your expectations; and
providing training and other support that is reasonably necessary. You only need to provide reasonable training and support that is directly related to helping them improve the aspects of their performance which are of concern to you.

8 Consider the Employee's Performance

At the end of the performance improvement period, consider whether the employee has met the measurable targets that you set for them.

If they have, write to them confirming that you are satisfied they have met their targets and that the performance process will now end.

If they have not, you can proceed to the next phase.

Phase 3: Disciplinary Process

9 Write another letter to the employee

This letter should include:

the plan targets and why you consider they have not been met;

a list of any documents you are relying on to support your view that they have not met the plan targets. Be sure to enclose copies of these documents when you give the letter to the employee;

a statement that you have not made a final decision on whether they will be treated as having not met the plan targets. The letter should emphasise that you will not decide whether it is fair to conclude that they have not met the requirements of plan until you hear and consider their response. It may be that they have genuine reasons for why the targets were not met that were outside their control, or you may be relying on faulty data;

a statement that if you do find they have not met the plan targets, then you may take disciplinary action, up to and including dismissal. This ensures the employee is under no illusion about the consequences that may follow if they are found to not meet your expectations. If you are not contemplating dismissal, but only a warning at worst, then you should state that instead;

a request to meet with the employee at a specified date to hear their response to your view that they have not met the plan targets. This should be at least two working days after the employee will be given the letter to give them sufficient time to consider their response and seek legal advice or arrange a support person;

an invitation for the employee to bring a support person or representative to the meeting if they wish to do so; and

details of who to contact if they wish to ask anything about the process. It may be that they need to contact someone to reschedule the time of the meeting if it is not suitable for them or their support person, or because they wish to give their feedback in writing instead of meeting with you.

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10 Write another letter to the employee

11 Meet the employee to hear their response

At this scheduled meeting, start by reiterating your view that they have not met the plan targets and then ask for the employee’s response.

Again, listen carefully and take notes of what the employee says (it is best if you can have someone with you to take notes, so that you can concentrate on listening to the employee). If there is anything in the employee’s response that is unclear to you, ask the employee questions. But take care to not give the impression you have already made up your mind.

At the end of the meeting, summarise what you believe you have heard the employee say and indicate when you wish to reconvene to advise the outcome of the disciplinary process.

12 Consider the Employee's Response

The employee may have suggested other people you should talk to or other documents you should review. You should follow these leads if it is reasonable to do so.

Once you have all the relevant information, decide whether you think the employee has any good reason for not having met the plan targets. If there are no further leads to follow, this period of deliberation may be a 30-minute adjournment to the meeting. However, you should take an adequate period of time to consider everything before making your decision.

If you believe the employee has failed to meet the plan targets without any good reason, go on to decide what you think the appropriate penalty should be, e.g. a warning, a further performance improvement period, or dismissal on notice. Take into account such things as the employee’s length of service, their previous work record, their personal circumstances, the severity of their poor performance, and whether your expectations were clear.

13 Meet the employee to give your decision

Tell the employee whether you think they have any good reasons for not meeting the plan targets and why. If there are no good reasons in your view, tell them what your preliminary view is on the disciplinary action that should be taken. Ask the employee whether they think the disciplinary action you are proposing is fair and appropriate before you make a final decision.

Once you have heard from the employee on that point you should adjourn to consider whether anything the employee has said changes your mind about what disciplinary action you should take. This could be a short adjournment, of say, 10 minutes, but should be enough to genuinely consider the employee’s response. Then return to the meeting and advise the employee whether you are proceeding with the action you proposed.

End the meeting by advising the employee that you will write to them to confirm your decision.

14 Write a Letter to the EMployee Confirming Your DeCision

In this letter, you should summarise why you consider that the employee did not meet the targets set out in the performance improvement plan and that their responses did not excuse their performance. Then go on to state what disciplinary action you have decided to take.

If you decide to dismiss the employee, you should also advise what day is the employee’s last working day and whether they are to work out their notice period or, if their employment agreement permits it or they agree, be paid in lieu.

If you decide to issue a warning, your letter should specify the duration of the warning and the behaviour by the employee the warning relates to. You may elect to initiate a further performance review period, in which case you should set out the ongoing expectations you have of the employee and the possible consequences should they not meet those expectations within that period.

You can deliver this by email or mail – you do not need to meet with them if you do not wish to.

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