Personal Finance

Legal steps to watch out for when conducting appraisals

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Employees have a good defence in a court of law if the poor performance is attributable to external factors. PHOTO | FILE

It has become a common HR practice to have performance benchmarks for employees, especially those in senior management.

In the government, leaders of parastatals are given performance contracts that set benchmarks and by which performance is measured.

Appraisals are done annually in most organisations. These reviews enable an employer to make key decisions on issues such as promotion, motivation, demotion and retention of staff.

Performance management is often viewed negatively by staff and most people dread the appraisal process. This does not have to be the case if performance management is handled well.

A good performance appraisal should keep the following in mind.

First there should be regular feedback to employees on their performance. It is wrong to undertake an appraisal and not communicate the results. The performance expectations should be well communicated and staff should know and understand the benchmarks well.

A good performance management policy clearly links performance to compensation such that good or top performers are awarded.

Some of the ways of rewarding top performers include public recognition, issuance of performance bonuses, gifts, leave days, promotion and other motivational tools.

What happens when an employee does not meet the performance benchmarks consistently? The first step would be to find out why he/she is not meeting these benchmarks and put in place mechanisms to help improve performance.

Poor performance can be as a result of internal factors such as demotivation or a mismatch of skills and job description.

Organisational issues that contribute to poor performance include poor structures, bad governance or office politics. An employer should look to rectify these rather than being quick to make a decision on the employee.

It is common place for a person to be labelled a poor performer in one organisation yet be a top performer in another.

At times employers set unrealistic performance targets and do not put mechanisms in place to assist the employee perform well.

Poor performance can also be attributed to industry and other external factors that have nothing to do with the employee. For example, the industry could be going through a crisis. At times it could be a global issue that the employee can do nothing about.

Some employers take the option of terminating the services of an employee when performance is constantly poor.

Employees have a good defence in a court of law if the poor performance is attributable to external factors; for example, where the organisation has poor reporting structures or there is office politics.

Employees who are terminated in such circumstances can sustain an action in court for wrongful or unfair termination.

Where the poor performance is due to external or industry-related causes, then the employee can plead the doctrine of force majeure. This is where someone is absolved from contractual duties due to the occurrence of something beyond their control.

Mputhia is the founder of C Mputhia Advocates. [email protected]