KEY POINTS:
I recently hired a person to work in my business. When I interviewed this person they appeared to have all the experience I wanted and came across as very competent and able to do the job. It has been one week now and it has become apparent to me that I have made a mistake in hiring this person. This person's organisational skills are unsatisfactory. I don't think he is the right person for the job. This person is subject to a one month probationary period. The period is coming to an end in one week. Can I dismiss him at the end of this period? I don't think this person will improve in the role. I assume I am well within my rights to do this. What can I do to safeguard my position?
Under The Employment Relations Act probationary periods do not affect the application of the law relating to unjustifiable dismissal. Even if an employee agrees to enter into an employment agreement that is subject to a probationary period or trial period, the employer must ensure that any dismissal is carried out in a procedurally fair manner and is substantively justified.
Unfortunately, just because this person is under a probationary period does not mean you can end his employment without following a fair procedure. In other words you cannot just let the probationary period expire and then give the employee notice. You will leave yourself vulnerable to a personal grievance action based on unjustifiable dismissal if you do not follow a fair process.
In order to comply with a fair process you must make the employee aware that you have concerns about his performance. This should be done in a formal manner so the employee is well aware that his employment is at risk if his performance does not meet a satisfactory standard.
What you should do is set up a meeting with the employee and at this meeting tell him precisely where he is under performing and exactly what he needs to do to improve. Allow him to comment on this and encourage him to put forward any concerns he may have about e.g. his role, the way he is being supervised etc. If any further training is required then identify this with the employee at this meeting. At the same time you should make it clear to the employee that his employment is in jeopardy if he does not improve.
This way the employee will become aware that he needs to improve and focus rather than being blissfully unaware that he is under performing.
As I understand it the probationary period is now coming to an end. If you have followed the above steps then at the end of this period dismissal will be justified. But if you have not implemented any sort of process to make the employee aware that his performance is a concern, I recommend that you do not dismiss the employee immediately after the end of the probationary period.
I recommend that you set up a meeting with the employee and discuss the issues outlined above. You should also extend the probationary period to give the employee an opportunity to improve.
If after the extended probationary period the employee has still not improved you have the option of dismissing him.
