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Professionals are people who do jobs well even when they don’t feel
like it. As a professional,
there’s nothing more frustrating than getting fired on unfounded
allegations of employee incompetence.
But while easy to allege, incompetence is becoming increasingly
more difficult for your employer to prove in court, thereby opening the
door for streetwise employment lawyers to beat even the harshest
allegations of incompetence through defence on the following three
grounds.
1)
Is the worker being judged against an objectively reasonable
standard of competence?
Standard of performance expected of the worker must be objectively
reasonable, taking into account job description, past performance,
industry standards, and comparative performance of their peers.
Accordingly, firing an employee for producing only 500 widgets an
hour just because some exceptional worker in China can produce
1,000/hour will not qualify as bona fide comparison justifying
dismissal for cause.
2)
Did the worker substantially fail such reasonable standard of
competence?
Courts must ultimately make a factual determination in assessing alleged
failure to meet reasonable performance goals. More specifically, streetwise employment lawyers will remind
the court that it is in fact the employer’s onus of proof to
demonstrate (a) employee failings, (b) that such failings fall within
that particular employee’s job description, and (c) that the
employee’s behaviour was in fact damaging to the company’s
operation. Even then, the
streetwise employment lawyer can still argue reasonable explanations for
unsatisfactory performance such as illness, medication, family problems,
and others - especially where the employee has worked many years for
this employer with otherwise satisfactory work record.
3)
Was the worker given advance warning of their failing to meet reasonable
standards of employee competence?
While the employee may very well have performed incompetently, arrived
late to work every day, and inflicted huge performance costs on the
company as a whole - the streetwise employment lawyer will nevertheless
win his client’s wrongful dismissal lawsuit on grounds of inadequate
warning by the company such that the employee was made aware of his job
performance shortcomings and provided reasonable opportunity to improve.
And so given proven defences available to hard-working professionals
falsely accused of workplace incompetence, courts know how much easier
it is for employers to be critical than to be correct, and - upon
receiving judgment in your favour - soon your boss will realize it too.
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