Introduction

Employees are contractually obliged to perform their assigned tasks to satisfactory levels. Though the Employment Act may be scanty as regards what constitute a poor performance, the key consideration would be that the employee should have failed to meet the agreed work standards in their workplace.

Poor performance (P.P) can also be seen as the unsatisfactory job performed and the employee’s actual performance, a gap between the employee’s actual performance and the level of performance required by the employer. Poor performance cannot be dealt with through just one evaluation. Instead:

  1. It involves the planning of work by an employer
  2. Setting of expectations 
  3. Continued monitoring performance
  4. Building on the employees’ capacity to perform
  5. Periodically rating the performance 
  6. Rewarding good performance.

As regards to performance standards, the same/ must be:

  1. Reasonable
  2. Understandable
  3. Verifiable
  4. Measurable
  5. Equitable
  6. Achievable

Lastly, the standards once set, must be made clear to the employee if he is to be held accountable and responsible for non-attainment of the standards as was held in Maina Mwangi vs. Thika Coffee Mills Ltd, ELRC No.2177/2012 (Rika J.). Poor performance is a ground for dismissal BUT can however never be instant, to say insubordination. Contrary to insubordination that focuses on the behavioral aspects of the employee, P.P addresses the output aspects only. Thus, P.P should be handled differently.

Performance is gauged on the basis of efficient job supports, acceptable quality and compliance with employer’s operating procedures, sufficient employee’s effort and ability to perform a job at the expected level as per the disposition in Kenya Petroleum Oil Workers Union vs. Kenya Petroleum Refineries Union, ELRC No. 68/2013 (Radido J.)

Section 44 of the Employment Act provides that an employee is liable to be summarily dismissed if they willfully neglect to perform any work which is their duty to perform or carelessly and improperly perform any work which from its nature is to be performed carefully and properly. In Borden vs. Purolator Courier Ltd, the Canadian suit stated:

Here (Poor performance) to a large extent, the employer bases its dismissal of the Plaintiff (Employee) on the Plaintiff’s incompetence. In order to establish an employee’s incompetence as a ground for dismissal, an employer must show more than mere dissatisfaction with the employee’s work and it is not enough to show that the employee was careless or indifferent.

To establish the cause of the basis of incompetence, the employer must show:

  1. The level of job performance that is required and the level required was communicated to the employee,
  2. That it gave suitable instructions to the employee to enable him to meet the standards,
  3. The employee was incapable of meeting the standards,
  4. There had been a warning to the employee that failure to meet the standards would result in dismissal.

To rely on poor performance as a cause of termination, the same must conform to Section 45(2)(5) of the Employment Act in there must be a fair reason and the burden of proof that poor performance was fair reason rests on the employer.

To dispense with the burden, an employer has to show that there were measures in place to assess the performance of each employee through an evaluation policy. Thus, where an employer claims that an employee has poorly performed, it should be shown that there were attempts to address the poor performance through a structured system that set a target to be achieved by the poor performing employee.

The following key considerations thus must be proved to exist by an employer before any employee is accused of poor performance:

  1. The employee must know beforehand the requisite standards expected by an employer 
  2. The standards if set must be shown to be reasonable and realistically achievable 
  3. Apart from being reasonable, the employer gave the employee sufficient opportunity to achieve those set standards
  4. The failure to achieve the standards is directly attributable to the employee.

A finding of fair dismissal on the ground of poor performance can hence be established if the employer can show that the problem was identified and explained to the employee, formal warning letters given, and a fair opportunity to improve on the performance. This can be done through couching, training, or additional support relevant to the circumstances.

There are no set rules regarding the period of improvement and time will depend on the status, service, and post-performance of the employee. There is also no cap to the number of warnings that ought to be given to an employee as regards to performance before considering termination of the employment but due regard would be on the level of improvement required and the seniority of the employee.

As a sure way of securing objectivity in assessing the performance of the employee clear targets upon which subsequent performance appraisals will be undertaken must be set and performance must be measured and definite periods of review set. The employer must thus keep written records regarding the employee’s performance review. An employer who fails to manage the performance of their staff, the key being through appraisals, has no moral authority to tell the staff that they have underperformed.

Poor performance can be assessed using two tools. Performance Appraisal System (P.A.S) and Performance Improvement Plan (P.I.P)

 

Performance Appraisal System (PAS)

An appraisal is defined as a formal assessment of the performance of an employee. The employer must have a credible and verifiable Performance Appraisal System.

Performance standards set by an employer must be reasonable, understandable, verifiable, measurable, equitable, and achievable. Further, the appraisal has to be undertaken within a defined policy framework that ensures the substantive participation of an employee.

A comment by a Supervisor without the participation of an employee cannot pass for a performance appraisal. If there may be a disagreement between the employee and supervisors on the verdict of the performance appraisal, the disagreement must be documented to show that an appraisal did indeed take place as was espoused in Jane Wairimu Machira vs. Mugo Waweru & Associates ELRC No.621 of 2012 (Ndolo J.)

It should be noted that the employee must at all times cooperate with the employer in conduction an evaluation exercise. While an employee may disagree with the appraisal, it is not open for the employee subject of evaluation to decline to sign the form. Such an employee has the option of indicating on the form the reasons for his disagreement while making a specific request for a repeat appraisal. By signing, the employee would not have been confirming agreement with the appraisal as his comments would be captured to show his disagreement as was espoused in Joyce Kabura Njenga vs. Kenya Women Finance Trust ELRC No.1390/2013.

It should be noted further that an appraisal should also not be stage-managed to achieve a collateral purpose other than to seek improvement of employee performance. An employer must consider the views of the employee on the performance evaluation and not just those of the supervisor. If reliance is made on supervisor’s comments, then this will have performance appraisal as a blunt weapon in the hands of overzealous supervisor against employees they don’t like as was arguably elucidated in John Ratemo Ondieki vs. Islamic Relief World Wide ELRC No.1422 of 2012 (Ndolo J.)

Thus, if an employee and his supervisor disagree either on the conduct or outcome of the performance, appraisal a grievance presents itself and the employer must provide an objective forum towards the resolution of the grievance e.g. joint meetings.

 

Performance Improvement Plan (P.I.P)

This is a tool for progressive and consistent monitoring of employee’s performance once found to be below expectations with the aim of addressing his unsatisfactory performance issues. It also provides an avenue through which struggling employees can closely engage with the management in developing strategies aimed at improving performance.

Performance Improvement Plan usually emerges as an outcome or recommendation of a performance review. Thus, if upon conclusion of a performance appraisal process, an employer is of the view that an employee performance ought to be closely monitored for improvement, it should document performance issues and proceed to place the employee on P.I.P.

An employer has to manage a performance improvement plan in a fair with the primary aim of improving performance and not a veil or conduit to dismiss the employee. The elements of an objective performance improvement plan should clearly:

  1. Explain the deficient performance and why it needs to be corrected
  2. Provide specific expectations and describe the desired performance in either qualitative or quantitative terms.  The standards should be specific, measurable, attainable, relevant and timely (SMART).
  3. Develop an action plan that follows the SMART guidelines.  Timelines should be set based on areas of improvement cited and severity of performance deficiency (PIP timelines are usually 30,60,90 days in duration)
  4. Allow reasonable time to resolve the deficient performance and establish periodic review dates.
  5. Describe the resources available to assist the employee including coaching or training where necessary to meet the objectives.
  6. Allow for an objective periodical performance review of performance and inform the employee how his performance will be monitored or reviewed
  7. Notify the staff of the consequences of continued deficient performance e.g. that further disciplinary action may be taken.

PIP is not required in all instances. An employer must thus lay a proper basis for subjecting an employee to PIP process. Employees who are performing their duties effectively do not need to be subjected to the PIP process. Results of a performance appraisal provide objective evidence in the hands of an employer to put an employee in PIP.

Before the introduction of the PIP, the supervisor should conduct face to face meetings with the concerned employee to explain the process and an employee should sign the PIP at commencement and during all review meetings. Once in PIP, the supervisor should consistently engage the employee in all relevant stages. Each progressive step required to be performed by either the supervisor or affected employee is crucial and must be performed to preserve the integrity of the overall results of the PIP

It is the responsibility of an employer to ensure the PIP runs the full cycle. Courts have held that an employer who begins PIP cannot legitimately abandon it midstream just because an employee objects to some segments of it. Caroline Wairimu Luzze vs. Nestle Equatorial Region Ltd ELRC No. 1045/12 (Ndolo J.)

A supervisor attached to an employee on PIP is required to provide consistent and friendly feedback to the employee regarding his progress and provide additional support or resources necessary for the employee to meet the objectives of PIP. This would enable the later to be aware of his progress through the various phases of PIP. The Supervisor is required further to update the PIP after review meetings by documenting actual performance against the set standards. At the conclusion of the plan, the Supervisor should review the employee’s performance and utilize it to make an objective decision. The Supervisor usually in consultation with the HR should make a determination based on the final results of PIP.

It should be noted that if an employee meets the objectives of PIP, an employer is bound to close PIP and allow an employee to resume his normal duties. However, if the employee shows some improvement, the employer may at his option extend the PIP to give the employee an opportunity to meet the desired objectives.

Further, if an employee refuses to commit to PIP or if at the conclusion of the PIP and after the objective evaluation the employee has not improved to the required standard, the Supervisor would then recommend to the HR or its employer as the case may be, to initiate the process of terminating the employee on the basis of poor performance. Thus, there are 4 steps that guide the implementation of PIP from the start to the end:

  1. Identification of the problem or performance issues;
  2. Development of the plan;
  3. Coaching the plan; and
  4. Conducting the plan.

Conclusion

In conclusion, therefore, poor performance is subjective and the employer must demonstrate the basis for such a finding. Before an employer can dismiss an employee for poor performance, resources must be provided to the employee for the achievement of required standards and their dismissal must be for a fair reason.

 The right under Section 41 of the Employment Act and under Article 41 of the constitution read together with article 47 on fair administrative action require that a person faced with an adverse action must be supplied with relevant materials, couching, training, time, and resources necessary to be able to prepare their defense, improve on their performance, build on their skills. An employer can therefore not just rely of the grounds of poor performance to terminate an employee. The rationale is that such an employee was hired and found fit for the job, any deterioration in performance must be interrogated and effort made to address it. It cannot be simply cited that the Claimant suddenly became of poor performance when all his quarterly performance appraisals were in the positive. Indeed, in Christopher Onyango & 24 others versus Heritage Insurance Co. Kenya Ltd, Cause No.781 of 2015 the Court held, 

The subject of the poor performance of an employee is a serious matter. Such requires thorough investigations before an employer can use such a reason as the basis for termination. The rationale is that an employee is hired for being competent for the job and upon confirmation, such an employee has been put to the test and passed. Where an employee works for long periods and suddenly declines in their performance, the root cause must be established … A credible performance appraisal process must be participatory with parties sharing comments and where the employee is left out, such cannot pass.”

Therefore, is not sufficient for an employer to cite poor performance as the reason for termination. The employer must demonstrate what measures have been put in place to support a poor performing employee. That despite support, the poor performing employee has not made an effort to improve and hence the reason for termination. Where Performance Development Plans, Performance Improvement Plan or capability hearing is used at the tool to address poor performance, the reason must be gone into its implementation. The employees must know from the onset that such a tool is not only meant to assess their levels of productivity but also as a tool to assess their work performance and in the event, there is below required performance, then the motions of section 41 of the Employment Act shall fall into place. The Performance Development Plans as a good practice/tool can therefore not be used as the alternative to the application of section 41 of the Employment Act provisions. Each should serve its intended purpose. Once the employer is done applying the Performance Development Plans, Performance Improvement Plan and Capability hearing/meeting tools and they are satisfied that the employee has failed to improve, notice to show cause, notice for the hearing, and the call of the t union or an employee of choice are mandatory requirements. Such must be adhered to without being circumvented by the warnings envisaged under the internal tools of the Employer. The material generated in the process would be in support of the allegation of ‘poor performance’ but on the applications of the tools alone without invoking the mandatory requirements of the law such would result in the process being unfair

This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set out in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact the following: Caxstone Kigata or Maurine Sumba vide caxstone@wamaeallen.com  or maurinesumba@wamaeallen.com respectively.

 

Senior Associate at Wamae & Allen

Caxstone specializes in civil, employment and labour disputes, constitutional law, family law and succession, and environment and land matters. He has amassed a wealth of knowledge and experience in litigation which is evident in the successes obtained for clients. He is an active member of the Employment and Labour Relations Court Bar-Bench committee.

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