In our previous article we have examined the cases in which an employer may terminate the employment due to an employee's inappropriate behaviour or attitude. But what if inadequate work or the lack of expected results is not because of the misbehaviour or bad attitude of the employee, but because of not having the knowledge or skills needed to perform the job properly. What can an employer do in this case? What can be the basis for a legal termination? From our article, you can get the answer to these questions.
The first part of the article is available here:
The second part of the article is available here:
1. Reasons in connection with the employee
To better understand dismissal for reasons related to the employee, let’s take a look of the below figure:
Readers of the previous articles are familiar with the fact that the Labor Code (L.C.) does not list specific grounds for termination, provides only that “an employee may be dismissed for reasons in connection with his/her behaviour in relation to the employment relationship, or with his/her ability.” (see in the first column)
Since the L.C. provides what the problem may be related to, let’s examine how problems with the employee can manifest in reality: it does not require explanation that a problem may manifest in the behaviour of the employee or in their work (and its outcome). (see in the second column)
2. Distinguishing between behavioural and ability-related causes
It is important that under behavioural problems, you should not only consider deviant behaviour or unjustified absences, since faulty, inaccurate, belated work is often the result of behavioural problems as well, for example, when an employee spends half of his working time on Facebook or works while having a hangover.
Therefore, problem with the employee's work does not automatically mean the lack of ability or their incompetence. The significance of the above is that, if the justification of the dismissal is based on incompetence or lack of ability in case of a problem which is actually behavioural, it will not meet the requirement of reality, which may lead to unlawful termination.
3. Reasons related to ability
After clarifying the preliminary question about the distinction, let’s return to the figure. It can be seen that (lack of) ability and incompetence are not among the reasons for termination, in the third column. This is because it is not practical to refer directly to the lack of ability or expertise, since the abstract concept refers to the employee's inner characteristics, the lack of which cannot be objectively demonstrated.
However, the lack of knowledge or skills necessarily turns out during work, for example, in the form of unprofessional work, constant delays, so the lack of ability can indirectly lead to termination of the employment.
First “indirect ground”: inadequate work
Since the L.C. provides that “employees shall perform work with the level of professional expertise and workmanship that can be reasonably expected, in accordance with the relevant regulations, requirements, instructions and customs”, inadequate work due to incompetence constitutes the breach of the above duties, which may be a legitimate reason for termination.
Second “indirect ground”: inadequate performance
The employees’ incompetence can lead to inadequate performance. This ground is controversial in jurisprudence, on the basis of recent decisions, the failure to deliver the expected results in itself does not constitute a legitimate ground for termination. According to a decision of the Supreme Court, justification based on inadequate performance may only be lawful if it is proven that it was caused by the employee's ability or behaviour.
In another decision, the court found that termination based on the lack of expected results may not be lawful if there is no prior complaint regarding the quality of the employee’s work over a longer period.
In the light of the above, it is worth examining whether inadequate performance is caused by poor quality, unprofessional work (eg: incorrect calculation due to lack of expertise). If the former can be proved, the employment relationship may be terminated on the ground described in the previous section.
4. Medical unfitness
Among the reasons related to ability, we shall mention termination due to medical unfitness. As the assessment of this reason falls into the competence of a medical expert, we briefly highlight two legal aspects: The determination of the incompetence due to medical reason is regulated by a separate law, the assessment can only be carried out by a medical specialist authorised by the law. In addition, medical unfitness should not be confused with incapacity for work (sick leave) or its frequent occurrence. While incapacity for work is temporary, medical unfitness for a job is always lasting, usually permanent.
In this article, we explained the reasons for termination due to the (lacking) skills or ability of the employee, after having properly distinguished such causes from behavioural reasons. It can be concluded that it is impractical to refer directly to the lack of ability or competence. However, a lack of skills is usually manifested in faulty, unprofessional work output, which can also lead to inadequate performance. If it can be proved that the employee provides inaccurate, unprofessional output, the employment may be lawfully terminated.
 Act I. of 2012
 consider Mfv. I. 10.434/1993.
 consider Mfv. I. 10.904/2009.
 Section 52 (1) c) of the Labour Code
 Mfv. II. 10.006/1999.
 BH 2008.344.
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