It is not uncommon for employers to deploy the grounds of ‘poor performance’ as means of dismissal of employee.
This, is an abuse of employer’s rights and managerial prerogative. The Industrial Court will intervene and struck down such dismissals.
The following general guidelines apply when determining the bona fide of dismissals on grounds of poor performance:
1. Employer must prove that the employee was warned of his poor performance.
2. Employee was accorded sufficient opportunity to improve, and;
3. Despite the above, the employee failed to sufficiently improve his performance.
Employers to be mindful that:
1. Poor performance is not misconduct.
2. Prior warnings of poor performance must be given.
3. Employer must undertake rehabilitative measures to assist underperforming employees.
4. If the employee is placed on Performance Improvement Plan (PIP), the PIP must be in good faith, clear, reasonable and complied with closely.
5. Where targets are set for underperforming employees, the target must be reasonable. Unreasonable targets can be struck down as unfair labour practice.
6. Employees must be given sufficient time, guidance and opportunity to improve.
See
– Ireka Construction Berhad v. Chantiravathan a/l Subramaniam James [1995] 2 ILR 11
– Lee Hsin Ying v. Sleekflow Technologies Sdn Bhd – Award No. 55 of 2026
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