Inadequate work performance may, depending on the circumstances, constitute valid grounds for dismissal. Whether poor performance justifies dismissal must be assessed on a case-by-case basis. The key question is whether the employee’s performance falls significantly below what an employer is entitled to expect. It is therefore not sufficient that the employer is merely dissatisfied or wishes to make changes to the workforce.
The employer must have provided adequate training
f the employee’s inadequate performance is attributable to insufficient training provided by the employer, dismissal will generally not be justified. Employees are entitled to training, and employers have a duty to provide adequate instruction and support. What constitutes adequate training must be assessed in light of the employee’s qualifications and the nature of the work involved.
The employee should be given an opportunity to improve
It is important that the employee is informed of any deficiencies in performance and given a reasonable opportunity to improve. A written warning provides a clear indication that improvement is expected. In addition, a written warning may serve as important evidence in the event of a subsequent dismissal. The burden of proving that a dismissal is objectively justified rests with the employer. Consequently, any deficiencies in performance should be properly documented and capable of verification.
It is also advisable for employers to conduct performance review meetings during which employees are given the opportunity to express their views regarding their work performance. Such discussions may reveal, for example, whether the employee believes that the training provided has been inadequate. To ensure a reliable record of the meeting, minutes should be prepared and signed by both parties.
The employer should consider accommodation or reassignment
Before proceeding with a dismissal, the employer should consider whether measures can be taken to accommodate the employee and address the performance issues. If reasonable accommodations could resolve the problems but are not attempted, there is a risk that a subsequent dismissal may be found unjustified, even where the employee’s performance falls below the employer’s legitimate expectations.
The employer should also consider whether reassignment to another position may be appropriate, where possible. In doing so, the employer must be mindful of the limits imposed by managerial prerogative and ensure that any changes to the employee’s duties are implemented in a lawful and proper manner.
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Martin Edelsteen Woll
mwoll@melo.no
+47 414 87 832
