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I have an employee that cannot do the job competently – how do I terminate fairly?

When an employee appears to be incapable of performing during a probationary period or where the employee has less than two year’s service, the employer is able to dismiss relatively easily.

Where the employee has more than two year’s service he has a statutory right not be unfairly dismissed.

Capability is a potentially fair reason for dismissal. However for an employer to ensure that a dismissal on the grounds of capability is fair it is important to obtain clear evidence of the employee’s poor performance in order to show that the grounds are reasonable.

It is also important to ensure that before terminating the employee’s employment that the employer has carried out an investigation, provided the employee with findings of that investigation and allowed them to respond and address any shortcomings in their performance.

The individual concerned should be made aware of their poor performance and if necessary given warnings indicating the seriousness of the concerns and a reasonable time frame to improve. If the capability concerns have highlighted any training deficiencies then an employer should offer support or training as evidence of reasonableness.

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