Compiling a file on a dysfunctional employee
Is compiling a file on a dysfunctional employee necessary? Employees enjoy far-reaching protection against dismissal. As an employer, you must have reasonable grounds for dismissal. You must also be able to substantiate these grounds in court. Compiling a file is essential in order to dismiss an employee performing inadequately. The file must show that the employee is not performing well. However it must also show that he/she has been given sufficient opportunity to improve his/her performance.
What exactly is compiling a file?
Compiling a file is the term given to the written recording of documents and correspondence relating to an employee. Such as the recording of meetings, appointments, instructions and appraisals. Compiling a file begins from the first day the employee is identified as performing inadequately. The moment the employer holds the employee to account for his/her inadequate performance is often the starting point for an improvement plan. Previously, we wrote about the steps you need to take for a successful improvement plan. Click here to read more about a successful improvement plan.
Is compiling a file on a dysfunctional employee mandatory?
An employer is not legally required to compile a file. However, the employer is expected to be able to substantiate that the employee is not performing adequately and show that it has made efforts to help the employee do so. Therefore, for future dismissals, compiling a file is essential. Moreover, a file creates clarity, both for you and your employee.
You compile a good file by documenting both contact with and appraisals of the employee performing inadequately. You can do this by creating a folder in which you record all discussions and agreements. That folder will then be part of the file. The reports of discussions and e-mails do not need to be approved and/or signed by the employee. You must be able to make it plausible that the employee has been held to account for his/her performance, that he/she has been offered an improvement plan setting out concrete points for improvement and that his/her progress has been structurally evaluated.
We recommend that the objectives and duration of the improvement plan, as well as the possible consequences if it is not successfully completed, are clearly established in advance. While internal notes and memos can also be added to the file, they will not be useful in any legal proceedings. This is because the employee had no knowledge of these documents.
The manager and human resources department have a major role to play in compiling a proper file. We will be happy to advise you on the tools you can use as a manager to hold the employee to account. As well as help you with the documents that are important for compiling a file.
Would you like more information?
Do you have any questions after reading this article? Or would you like more information about compiling a file for an employee performing inadequately? Then please do not hesitate to contact us.
Seliz works as a lawyer within the Employment & Pension law section of GMW lawyers. She advises both national and international employees and employers. Seliz is called in to assess settlement agreements, non-competition clauses, dismissal and for drafting tailor-made employment contracts.