Dismissal based on unsatisfactory performance or conduct is divided into four categories:
a. Unsatisfactory Performance or Conduct
b. Absenteeism
c. Ill Health
d. Incompatibility
This relates to the employee's ability and willingness to do the job. The employee must have the necessary skills, knowledge and qualifications and be prepared to behave in an appropriate manner to follow instructions, not intentionally harm the employer's business and use skill and care while working. The lack of ability to do the job, or failure to observe proper conduct, could constitute unsatisfactory performance or conduct.
When it is proven that the employee has consistently been absent or late for work without any reasonable grounds then the employment may be determined. Consistent absenteeism is a display of the employee's intention not to be bound by the employment contract. This amounts to unsatisfactory performance or conduct.
Various jurisdictions allow employee sick leave. For example in Queensland an employee is entitled to:
-
a. at least 8 days sick leave on full pay for each completed year of employment; and
b. for each completed period of employment of less than a year, at least 1 day's sick leave on full pay for each completed 6 weeks of employment.
However, the employee's entitlement is conditional on-
It is important that the employment contract be checked to see if the partiesa. the employee promptly giving the employer notice of-
i. any illness that will cause the employee to be absent from work; and
ii. the approximate period for which the employee will be absent andb. if the employee is absent for more than 2 days-
i. the employee giving the employer a doctor's certificate or
ii. the employee giving the employer other evidence of the illness to the employer's satisfaction
have agreed to a different arrangement.
Temporary absence from work as a result of illness or injury is an invalid reason for dismissal. However, after the employee has used up the paid sick leave entitlement, then an absence from the work place as result of ill health is not considered temporary where for instance in Queensland-
a. The absence is longer than 3 months; or
b. The cumulative absence in any one year period is longer than 3
months.
months period is up then continuing illness may be a ground for dismissal, if the
illness prevents the employee from carrying out duties in a satisfactory way.
Again the employer should seek confirmation from the proper authorities or
seek legal advice.
Often the situation arises where an employee through personality differences clashes consistently with management or fellow employees. Such incompatibility is not serious enough to warrant dismissal. The employer should where possible attempt to solve this issue by transferring the employee to a different position.
If the incompatibility affects the work environment to the extent that the business suffers or is affected in any way, then dismissal is justifiable. In other words where an employee allows personal issues to affect the employee's discharge of the employee's duties then any breach will constitute unsatisfactory performance which if proven may justify dismissal.
