Addressing poor
work performance

I have an underperforming employee; what are my rights and obligations as an employer?

You are required by law to offer an underperforming employee every reasonable opportunity to work on their development so that their performance will improve. You cannot take legal action to offboard them unless you can argue convincingly that you have given them every chance to improve. Doing so might also help to create goodwill with the person in question. This will make things easier if you decide to terminate their employment contract in the end as they are more likely to feel that every effort has been made on both their part and yours. In some cases, an employee may choose not to embark on the improvement process, for instance if they are doubtful about a positive outcome. Rather than documenting the employee’s underperformance, the best decision would then probably be to terminate the employment contract by mutual consent. Even then, you should still document that you offered the employee opportunities for improvement.

I have an underperforming employee; what steps do I need to take?

Step 1. Flagging the issue and starting a conversation

Sit down with the underperforming employee and be open and honest about their poor work performance. Make a written record of your meeting.

Step 2. Initiating the improvement process

Explain to the employee that they will have to embark on an improvement process and what is expected of them in this context. Questions to address would include: what is going wrong? What specific measurable goals does the employee need to achieve? How long will the improvement process be? What will be the consequences if the employee does not meet your expectations by the end of the process? What support and coaching does the employee expect to need from you and what action will they take? Do not forget to set a number of evaluation moments. Everything you have agreed should be documented in a plan signed by yourself and the employee.

For the process to have a real chance of success, both parties have to be committed and be confident of a positive outcome. If this is doubtful, the process is a waste of time and effort both on your and the employee’s part. You will then be better off seeking legal advice on how to offboard the employee.

Step 3. Performing interim evaluations

Make sure that you always make time for scheduled evaluation sessions, even if things are going well or the employee is not showing any improvement. Make a written record of your sessions.

Step 4. Wrapping up the process

Review whether or not the employee has managed to improve their performance as agreed. If they have improved less than expected, what are the consequences? Will you continue the improvement process, demote the employee or terminate their employment contract? Always make sure to seek legal advice.