Dismissal for underperformance: can an employer simply do that?

An employer must provide specific evidence of underperformance and give the employee a genuine opportunity to improve.

What constitutes underperformance?

Underperformance means that an employee does not meet the reasonable requirements of the role. A single mistake, a vague impression or unexpected criticism will not normally be sufficient for dismissal.

The job requirements must be clear. Relevant evidence may include an up-to-date job description, specific agreements, assessment criteria and records of performance reviews.

View other dismissal situations

1clear job requirements and specific criticism

2a genuine opportunity and support to improve

3investigation of another suitable role

Performance review and improvement process

What must the employer demonstrate?

1. Specific shortcomings: the records must show in which respects performance is structurally inadequate.

2. Timely warning: the employee must be told what is inadequate and that improvement is required.

3. Genuine opportunity to improve: the employer must provide sufficient time, guidance and appropriate support.

Have the improvement plan reviewed

An improvement process must offer a genuine opportunity

An improvement plan should contain measurable objectives, a reasonable duration, review dates and clearly defined support. What is reasonable depends on the role, experience, nature of the criticism and the time needed to demonstrate improvement.

Cooperate constructively, record your own response in writing and raise concerns promptly if objectives are unclear or unrealistic, or if promised support is not provided.

Also check illness, training and redeployment

Dismissal for underperformance may not be based on unsuitability resulting from illness or disability. The employer must also consider whether training or changes to working conditions could enable improvement.

If performance does not improve, the employer must generally investigate whether redeployment to another suitable role is possible. Without agreement between the parties, the subdistrict court ultimately decides whether to terminate the employment contract.

Have your records reviewed