Our company employs a cleaner who does not carry out her cleaning duties properly. In early September last year, we formally inspected the cleanliness of the premises she is responsible for cleaning and produced a written report of the inspection findings, which she was asked to sign. Based on that, we issued her with a written warning listing all the deficiencies identified during the inspection and informed her that a follow-up inspection would be carried out in two months’ time. According to feedback from other employees, the quality of her cleaning did not improve, and we conducted the follow-up inspection in mid-January. We again produced a written report detailing all deficiencies and asked the employee to sign it. Now, in February, we would like to serve her with a notice of termination on grounds of repeated minor breaches of work discipline. We notified her twice within a period of six months, and as her work discipline has not improved, we believe the conditions for termination have been met. Are we proceeding correctly?
You acted correctly in notifying your cleaner of the deficiencies in her work, documenting them in writing, and requesting confirmation of receipt. By informing her that a follow-up inspection would take place in two months, you effectively granted her a two-month period to improve her performance. When, after that period had elapsed, you found that her performance had not improved, you again recorded this in writing and provided the employee with a copy of the record. That too was the correct course of action.
However, this conduct (or lack of improvement) on the part of your cleaner does not constitute a breach of work discipline. In our view, this is a typical case of unsatisfactory performance of work duties. Unsatisfactory performance of work duties and breach of work discipline are two distinct grounds for termination. That said, distinguishing between the two in any given situation is not always straightforward. Correctly identifying the applicable ground for termination is important, as the conditions that must be satisfied differ depending on whether the termination is based on unsatisfactory performance of work duties or on repeated minor breaches of work discipline.
Under Section 63(1)(d), point 4 of the Labour Code, an employer may issue a notice of termination to an employee “if the employee performs work duties unsatisfactorily and the employer has, within the previous six months, issued a written request to remedy the deficiencies and the employee has failed to do so within a reasonable period of time.” A valid termination therefore requires that a written request to remedy the deficiencies be delivered no more than six months prior to the notice of termination, that the employee be given a reasonable period to remedy the deficiencies, and that such period expire without remedy. This is the situation with your cleaner. Your first written warning may be regarded as a written warning to remedy the deficiencies (i.e. to improve the standard of cleaning), and the four-month period after which you carried out the repeat inspection may be regarded as a reasonable period for remedying the deficiencies. The fact that in your written warning you indicated that the repeat inspection would take place after two months, but it was actually conducted after four months, does not constitute an impediment – quite the contrary. You afforded the employee an even longer period within which to improve her performance. In our view, the conditions for serving a notice of termination have been met. However, the notice of termination should state that it is being issued on grounds of unsatisfactory performance of work duties, and not on grounds of breach of work discipline.
In practice (though it would not be correct from a legal standpoint), you could also issue a notice of termination on grounds of repeated minor breaches of work discipline within the meaning of Section 63(1)(e) of the Labour Code. Under that provision, a notice of termination may be served “if, within the preceding six months, the employee has been notified in writing of the possibility of termination in connection with a breach of work discipline.” A valid termination on this ground requires that the employee be served with a written warning regarding the breach of work discipline containing a notice that further breaches will result in termination, and, following any subsequent breach, the employee must then be informed of the grounds for termination and given an opportunity to respond. If you follow that procedure, you could ground the notice of termination on repeated minor breaches of work discipline.
In any event, we are of the view that the correct ground for termination in cases of inadequate cleaning is unsatisfactory performance of work duties.
That said, if you were to state breach of work discipline as the ground for termination, this would not necessarily mean that you would be unsuccessful in any potential dispute concerning the validity of the termination of employment. A court is not bound by the employer’s legal characterisation of the ground for termination. The court’s role is to assess whether the facts giving rise to the termination satisfy any of the recognised grounds for termination. The mere fact that the employer classified the conduct under an incorrect legal ground does not automatically render the termination invalid. What is essential is that the employer has met the conditions for serving a notice of termination. In your case, in our view, these conditions have been met – regardless of whether the notice of termination states the ground as unsatisfactory performance of work duties or as repeated minor breaches of work discipline.
