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Head of Kyiv office, ILF
Problem Staff — How to Part Ways in Time and Without Fallout
The web is surprisingly full of articles about employees quitting their jobs which are usually written by those employees themselves. For instance, according to a survey done by Rabota.ua in 2017, 60% of Ukrainians were quitting because of low wages, and 50% — due to nonexistent career prospects. A third cited strained relations with their boss or colleagues.
But why do employers fire people? Generally, they mainly let employees go in two cases: when addressing business issues and making downsizing the staff or when the employee is a problem one. By the way, only 13% of the interviewed employees admitted to changing jobs because of reductions when the legal procedure is more or less clear and regulated. Problem staff is a different story. So who are they and what gives us the right to call them so?
From a CEO’s perspective, they can be broken down into two main categories — inefficient employees and disorganized employees.
In the first case, you hire an employee who does not do a good job. He or she is ineffective. Such employee might be a pleasant person, try hard and even sometimes succeed. The company drags them along like a suitcase without a handle — too pitiful to fire and too unproductive to keep.
The second category includes those who can work well, they are able to provide large sales or generate brilliant ideas. Yet they arrive for work late, take breaks whenever they want, watch videos in the middle of an important meeting or ignore calls. Such employees violate company rules on dress code, work schedule or internal communications.
The Way to Hire as a Prevention
It is important to understand that it is much better to avoid hiring a risk employee than to have to fire one later on. To begin with, you need to clearly describe every requirement for the position and the quality of work. Never forget that it is ultimately the employer who determines the duties of employees. The employee undertakes to perform the work set forth in the employment agreement (Article 21 of the Labor Code). The employer may not demand work that is not stipulated in that agreement (Article 31 of the Labor Code).
We hire employees for the position provided for in the staffing table. However, this document does not define the functions of that position. You can specify them directly in the text of the employment agreement, or in the job description or procedure instruction. Therefore, the list of necessary skills prepared by HR should use clear legal definitions of the specified documents.
No less important for the company are internal regulations, because the employee is obligated to follow and obey them under the employment agreement. These rules allow you to formalize and legalize the means of corporate policy on work with personnel, making them into rules of law. Failure to comply with these rules will entail disciplinary liability.
Set a Probation Period
To be sure of your employee’s professionalism, do not miss the opportunity to set a probation period. Keep in mind that probation is established on the basis of a concluded employment agreement. Probation is a part of labor relations: you have hired an employee and are paying him or her wages. The probation period cannot exceed three months for employees, or one month for workers.
If during the probation period you realize that the employee cannot handle the work, he or she can be dismissed under cl. 11, Article 40 of the Labor Code. However, you need to have evidence of his/her poor performance in case the employee appeals against dismissal in court. For this, you can use their reports, performance evaluations by their immediate supervisors, etc. Tangible results are the best proof of the employee’s skills and abilities. This could be a contract drafted by a manager, Peking duck that even the chef himself refuses to eat, etc. It is important to record such “achievements”.
If Employee Violates the Discipline
If the employee (intentionally or by negligence) fails to perform the duties assigned to him/her properly, it can be regarded as a violation of work discipline. The Labor Code of Ukraine provides for the following grounds for dismissal:
1. Systematic failure to perform one’s duties without good cause, if the employee has previously been subjected to disciplinary or public penalties.
2. Absence from work (which includes absence longer than 3 hours) without good cause. It is important to remember that this implies being absent from the company, not from the workplace.
3. Coming to work in a state of alcoholic or drug intoxication. It is best to establish this through medical examination. But, considering the judicial practice, alcoholic intoxication can be confirmed even by colleagues.
4. Embezzlement at the workplace (including small-scale embezzlement) of the employer’s property, established by a court verdict that has come into force or a resolution of a body authorized to impose administrative or public penalties.
It is vital to clearly establish the grounds for dismissal, as well as to follow its procedure. You may not just tell the employee that came in late: “You’re fired!” His/her absence of more than three hours must be recorded, and the unacceptable reason for this established. Or, even if everyone saw the employee taking away the laptop you bought from the office — you may not fire him/her for embezzlement until his/her guilt is established in court and the verdict comes into force.
Before dismissing someone, ask the employee to explain the breach of discipline in writing. The time limit for bringing disciplinary liability against a person may not exceed 1 month from the day the offense is discovered. Meanwhile, 6 months after the violation, the employee may not be held liable for a violation of labor discipline.
Sometimes the employee’s performance begins to suffer yet he\she cannot be blamed for this. This could happen when their health deteriorates, or their qualifications are no longer sufficient for the positions. The latter is often due to the advancement of technology that the employee cannot keep up with.
Only a doctor or special medical commission can declare an employee unfit for duty due to health issue.
Establishing that the employee is unfit due to lack of qualifications requires a number of procedures. This can be done based on the results of attestation (evaluation). For this, you must determine who and when takes part in it in the collective agreement. You also need to adopt attestation regulations, form an attestation commission, prepare an attestation sheet with criteria for evaluating employees, collect a number of documents to acquaint the commission with the employee, showing those documents to the employee first, and finally conduct the attestation. Based on its results, you can decide whether the employee is fit for the job. Again, not all employees are subject to attestation, such as those who have worked for less than 1 year, part-timers, minors, single mothers or fathers with children under the age of 14, etc.
Of course, you need not bother with attestation if you have solid proof that the employee cannot handle the job because he/she does not have sufficient qualifications.
When firing someone on the grounds of professional incompetence, you must offer them another position, one that they will be able to perform (if such exists). And only if the employee refuses, or no suitable job is available, can that employee can be dismissed.
The most difficult task is to fire those who do not violate work discipline and do their job adequately, but, for instance, have a reputation that is damaging to your company. Rumormongers and troublemakers are also a thorn in the employer’s side, sowing discord and disorder among their colleagues. To have them fired, combined efforts of the employer, HR and lawyer are required. And the latter will often be the most important, since unjustified dismissal might be costly for the employer.
What to do if there is no job description and company regulations do not reflect the actual requirements for employees, but the employee absolutely needs to be dismissed
There is no reason why the employer can not sort out the labor relations in its company in any time. If there is no job description, it can be prepared, and the employer can familiarize himself/herself with it and confirm it in writing. Remember not to change the employee’s duties too drastically, so that this does not qualify as a transfer to another position, which would require the employee’s consent.
By the way, global ordering of labor relations can be formalized using the procedure for changing the essential conditions of work in connection with changes in the management of production and labor. In this case, the employee must be notified about the coming changes 2 months in advance. If he/she does not agree with them, the employee can quit on the grounds of refusing to continue his/her work in connection with the changes in essential labor conditions under cl.6, Art. 36 of the Labor Code.
Therefore, employers that do not wish to tolerate disorganized and inefficient employees need to:
Clearly formulate the requirements for each position.
Put them in the employment agreement, job description or procedure instruction.
Adopt internal labor regulations that will establish an actual system of work with human resources.
Familiarize employees with all documents that set clear and understandable requirements for them and have them confirm it in writing.
Record any failure by the employees to perform their duties, always determine the cause and verify their guilt.
Observe the dismissal procedure established by law.
This will enable you to properly carry out dismissal, reduce the risk of labor disputes and protect your interests in court if disputes do arise.