Dismissal of Senior Employee

Apr 9, 2015


8 Legal requirements an employer must follow to dismiss a senior employee or manager.

  1. Remember the manager’s rights.
    Managers are still employees and therefore have a right that an employer cannot unfairly dismiss them. Courts admit that a manager is entitled to receive warnings and the employer still has to inform him properly of any allegations of poor performance. The current view is that senior managers have both the ability and duty to monitor their own work performance.
  1. Motivate how the manager is performing badly.
    Consider the manager’s performance contract, which should be part of the employment contract. He should be shown how he is not meeting the performance criteria. The employer has to make sure that it is not because it is not fulfilling its obligations to help the manager get there. For example, the manager must be given the resources he needs.As long as the manager knows the performance criteria he has to meet, the employer does not need to have a formal performance contract or performance management system in place. Senior managers have a duty to assess their own performance standards. The courts accept that senior employees are not always entitled to a hearing or opportunity to improve.Interpersonal skills (or the lack thereof) can also be a valid reason for moving a manager into another position, or ultimately dismissing him if the employer do not have alternatives.A loss of confidence can also sometimes be good grounds for dismissal. For example, loss of confidence in the manager’s ability to manage his division. The manager’s performance must be compared to the job requirements and assess whether he met the standards required of him.
  1. Set standards.
    Generally, the standards of performance expected from managers can be set. This should be done in consultation with the manager. If he agrees to them, it becomes a performance agreement. If he does not agree, he should be heard on why not.If agreement on the standards cannot be reached, but the employer believes they are fair, they can be implemented and expect the manager to follow them. He can take it further if he still wants to challenge it.The courts would not usually interfere with the performance standards that the employer sets, as long as the manager is not asked to perform miracles. It is the employer’s right to set reasonable performance standards and to decide whether manager is meeting them. An employer cannot expect the manager to go way beyond what any other person would do in that position.
  1. Give him time.
    An employer cannot move/transfer a manager into another position and then dismiss him for incompetence when he is still trying to get to grips with the new job. The employer needs to give him reasonable time to find his feet and also needs to help him along the way.
  1. Warn him.
    Tell him his job could be on the line if he does not shape up.
  1. Leave some things up to him.
    It is fine to assume managers are able to assess their own performance. They should be the first ones to know they are not meeting the requirements. Employers can generally do away with the strict rules around the counselling process, giving guidance, retraining, etc. to the same extent they must do for other employees.No one expects an employer to retrain a senior manager in the basics of his job, neither does the employer have to monitor the manager’s work to the same extent after he was warned him about his unsatisfactory performance.
  1. Consider the job.
    It may be okay in certain cases to look at the job and eventually dismiss for one or two bad instances of performance if it could have disastrous results. For example, an airline pilot because one bad move would be all it takes.
  1. Give the manager a chance to explain his performance and an opportunity to improve. If things still look bleak and the employer thinks dismissal is on the cards, give the manager a chance to explain himself. Try find other positions he may do better in – perhaps even a demotion.Consider the options. Employers do not have to create another job for a manager if there is not one and the employer cannot reasonably do so. Whatever the employer does, it is clearly inadvisable to just walk into the manager’s office one day and say, “sorry, you’ are just not shaping up, we’re going to have to let you go!”Dismissing a manager does not involve as much ‘effort’ as with employees – i.e. making sure the employee knows the specifics of his job, giving lots of guidance and instruction, sending him on training if necessary. However, the employer must still give the manager a fair opportunity to make things right and hear him out if it does not improve.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@labourman.co.za or 021 556 1075 to speak to one of our consultants.


Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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