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Eight legal requirements you must follow before you send your senior manager packing

by , 04 March 2015
It's usually senior managers who manage staff and conduct incapacity proceedings for employees. But what do you do when it's your senior manager who isn't performing? Since he already knows the drill, can you relax the rules for dismissing him when he doesn't meet expectations?

The answer is surprisingly 'yes'! Armed with these requirements below, you'll know exactly what do to...

But what exactly is a senior managerial employee?
It's someone who has the authority to hire, fire and generally discipline employees. He may also represent the organisation internally and externally (Basic Conditions of Employment Act). 
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Eight legal requirements you must follow to dismiss a senior employee
1. Remember his rights. Managers are still employees, so he has a right that you can't unfairly dismiss him. Courts admit that a manager's entitled to receive warnings. And, you still have to inform him properly of any allegations of poor performance. The current view is that senior managers have both the ability and duty to monitor their own work performance.  
2. Motivate how the manager is performing badly. Do this by looking at his performance contract, which should be part of the employment contract. Then show him how he isn't meeting the performance criteria. Make sure it isn't because you aren't fulfilling your obligations to help him get there. For example, give him the resources he needs. 
As long as the manager knows the performance criteria he has to meet, you don't need to have a formal performance contract or performance management system in place. Senior managers have a duty to assess their own performance standards. The courts accept that senior employees aren't always entitled to a hearing or opportunity to improve.
Interpersonal skills (or the lack thereof) can also be a valid reason for moving a manager into another position, or ultimately dismissing him if you don't have alternatives.
A loss of confidence can also sometimes be good grounds for dismissal. For example, in the manager's ability to manage his division. Compare his performance to the job requirements, and make your call if he's met the standards you require.
3. Set standards. You can generally set the standards of performance you'll expect from your managers. Do this in consultation with the manager. If he agrees to them, great, you can indicate it as an agreement. If he doesn't agree, hear him out on why not.
If you can't reach an agreement on the standards, but you believe they're fair, you can implement them and expect him to follow them. He can take it further if he still wants to challenge it.
The courts won't usually interfere with the performance standards you set, as long as you're not asking the manager to perform miracles for you. It is your right to set reasonable performance standards and to decide he's meeting these. You can't expect him to go way beyond what any other person would do in that position.
4. Give him time. You can't move a manager into another position and then fire him for incompetence when he's still trying to get to grips with the new job. You need to give him reasonable time to find his feet. You also need to help him along the way.
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5. Warn him. Tell him his job could be on the line if he doesn't shape up.
6. Leave some things up to him. It's fine to assume managers are able to assess their own performance. They should be the first ones to know they aren't cutting it! You can generally do away with the strict rules around the counselling process, giving guidance, retraining, etc. to the same extent you must do for other employees.
No one expects you to retrain a senior manager in the basics of his job. You also don't have to monitor his work to the same extent after you warn him about his unsatisfactory performance.
7. Consider the job. It may be okay in certain cases to look at the job and eventually dismiss for one or two bad instances of performance if it could have disastrous results. For example, an airline pilot because one bad move would be all it takes.
8. Give the manager a chance to explain his performance and an opportunity to improve. If things still look bleak and you think dismissal is on the cards, give him a chance to explain himself. Try find other positions he may do better in – perhaps even a demotion.
Consider the options. You don't have to create another job for him if there isn't one and you can't reasonably do so.
Whatever you do, don't just walk into his office one day and say, 'sorry bud, you're just not shaping up, we're going to have to let you go!
Dismissing a manager doesn't involve as much 'effort' as with employees – i.e. making sure the employee knows the specifics of his job, giving lots of guidance and instruction, sending him on training if necessary. But, you must still give the manager a fair shot to make things right and hear him out if it doesn't get better.

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