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How to Terminate a Poor Performing Employee

By June 20, 2018November 5th, 2019Employment Law, Practice Management

Terminating an employee for poor performance is possible, but it’s not easy. We get questions from dentists about how to manage or terminate employees who are not meeting the standards of their position.

So, if you are thinking about terminating an employee for poor performance (that is, terminating them for cause and not providing any notice of termination), consider the following:

  1. The performance of the employee must be viewed against an objective standard.  This means that the standards must be and appear to be neutral, attainable, and not subjective to the employer’s views or biases.
  2. An employer’s displeasure with an employee is not enough to warrant a termination. There must be serious misconduct or substantial incompetence.
  3. The employer must have established the levels of performance required by the employee.
  4. The standards were communicated to the employee (usually in a job description, training documents, employment contract)
  5. The standards were understood by the employee (usually this is through an employment agreement)
  6. Suitable instruction and/or supervision was provided to the employee (this should be documented as well)
  7. The employer has documented evidence that the employee was incapable of meeting the standard
  8. The employee was clearly warned (preferably in writing) that failure to meet standards would end in termination (we call this a “last chance” warning or agreement). These warnings must be adequate.
  9. The employee was given a reasonable and fair amount of time to improve their performance
  10. The more warnings given to an employee, the easier it is to terminate for unsatisfactory performance.
  11. If an Employer had previously condoned an inadequate level of performance, they may not later rely on that condoned behavior as grounds for dismissal. At the same time, any condoned behavior is relevant if the employee fails to respond after appropriate warnings.
  12. If the employee’s performance is grossly deficient and a termination is obvious, then warnings and reasonable notice are not required.
  13. It is always up to the Employer to prove that they had enough reason to terminate the employee (and not the other way around). (adapted from Boulet v. Federated Co-operatives Ltd., 2001 MBQB 174)

Terminating an employee for good reason – or for just cause, as we say around the office – is sometimes straightforward.  Theft or criminality in the office, breaching an employment agreement term, breaching patient confidentiality… those are some examples that may attract a for-cause termination.

But if the reason you are terminating an employee for cause is for poor performance, then there are several steps that have to take place before that final decision is made.  The dentist’s performance management process must be constructive, supportive and non-disciplinary. That process should also be done in an equitable and consistent manner for all employees and throughout the employment relationship.

You will see above that I noted that many of these steps to terminate a poor performing employee requires documentation – preferably in writing.  Regularly completed performance reviews are a good way to document an employee’s performance.  Beware: where an employer does not complete performance appraisals, an employee may have an argument to say that their poor performance was condoned by the employer, and they did not know that they were not meeting a certain standard.  So, those “as-needed” or irregular performance reviews may not end up helping in the future.

We help dentists in managing poor performing dental staff.  We provide Performance Improvement Plans, help dentists draft appropriate communications to employees, and (where necessary) help dentists to terminate employee for cause and without cause.

If you need advice about terminating employees, please contact DMC.  We are your legal dental team.

The Content of this post is provided for informational purposes only. It is not intended to be legal, financial, tax, or other professional advice of any kind. You are advised to contact DMC (or other counsel) to seek specific legal advice concerning your individual situation.