Performance Issues

The Industrial Court Case Between:

The Pan Pacific Resort Pangkor Vs
Raja Letchmi G Sundra Rajoo
(Industrial Court Award No. 989 of 2008)

Case Overview

The claimant had been in the hotel's employment for 15 years until she was
terminated in her capacity as Rooms Division Manager on grounds of her
alleged
poor performance. The claimant's problems with the hotel started when the new
General Manager was appointed on 1 April 2000.

The GM of the hotel observed that the claimant's performance was not up to the
mark within the 1st week of him joining. He then had discussions with the
claimant on her alleged shortcomings. Subsequently, he also testified that he
assisted, guided and encouraged her on the standards expected out of her in her
capacity as Rooms Division Manager. In addition, he also issued two memos to
the claimant covering various areas of weaknesses. When she failed to show
improvement, he issued her with three further letters pertaining to her
unsatisfactory performance - with the final letter mentioning that severe action
would be taken if she continued to not improve.

The claimant contended that she replied to all the GM's memos and letters
wherein she explained all the reasons surrounding the allegations of non-
performance raised. Ultimately, the claimant was dismissed on 21 April, 2001,
one year after the new GM's appointment. She then claimed unfair dismissal.
The core consideration before the Court was to determine whether the company
had been fair in its approach to dismissing the claimant.
WHAT THE INDUSTRIAL COURT HELD

The Industrial Court held in favour of the CLAIMANT, finding that the attitude
exhibited by the hotel’s GM toward the claimant was one that border-lined on
nit-picking. The court further found that the GM’s behaviour toward her showed
that he was more intent on demoralising and running her down instead of
getting her to improve. In basing its decision that the company had unfairly
treated her, the court cited the following:

“I question the manner COW1 as general manager managed and ran the hotel.
By perusing and assessing objectively what he wrote to the claimant, it was
plain to me that instead of motivating and finding comprehensive ways to work
and meet common objectives through efficient teamwork, COW1 chose to
demoralise and run down the claimant alone. There was no evidence that
COW1 held any regular meeting or powwow with all the managers (the
management team of which he was the head) to address and resolve
operational problems and hitches that would invariably arise from time to time.
Instead he chose to hold the claimant solely responsible and accountable.

There was also evidence that COW1 chose not to give part of the credit to the
claimant for the success of the DRB-Hicom CEO conference 2001. Page 12
CLB (claimant's bundle of documents) is a letter dated 27 March 2001 from the
Group Director of DRB-Hicom thanking COW1's team for their support and
assistance in the preparation and success of the conference. There was obvious
guest satisfaction here which underscored the importance of dedicated
teamwork. However, COW1 chose to nit-pick by his letter to the claimant dated
the same on p. 52 COB. From the tone and the nature of his complaints, it was
explicit that COW1 did not look at the overall picture of success but instead
preferred to go on a path of pedantic fault-finding against the claimant for
reasons only best known to himself."

After finding that the claimant had indeed been unfairly dismissed, the court
made an interesting decision by finding that the claimant should be reinstated in
her old position – despite her being employed in a management capacity. The
court cited the following in reference to its decision to reinstate her:

"After taking into account all the relevant considerations and circumstances
posed to the court by both parties in their submissions, I opine that there is no
adverse reason against reinstating the claimant. The breakdown in relationship
was not so much between the claimant and the hotel. The irretrievable
breakdown was rather between the claimant and COW1 who is now no longer
the general manager of the hotel. I am inclined to agree with the claimant who
submitted that her predicament started after COW1 took over as the general
manager. Page 1 CLB written by the relief general manager Chris Green just
before COW1 took over as general manager bore testimony to this. It has also
not been established by the hotel that the claimant was gainfully employed
elsewhere after her dismissal. Neither was there any admission by the claimant
on this. At the hearing, she declared herself as a housewife by way of
designation."
HOW WE CAN BENEFIT FROM THIS CASE

It’s Not About Warning Letters

Some companies are still mired in this ‘cold war’ approach toward managing
poor performance. This adversarial approach towards managing a poor
performer often leads to:

a) Managers choosing to stay away from approaching this matter altogether; or

b) Managers thinking that managing performance is all about issuing the
requisite number of warning letters.
A new approach needs to be adopted in companies. Managers need to be taught
on how to correctly manage their subordinates where they detect a ‘slip’ in
performance.

WHAT THE INDUSTRIAL PROCESS WANTS

Assume your organisation has a poor performer whom it ultimately dismisses

from service. The employee takes the matter thru the industrial relations process
which ultimately ends up in Industrial Court. In court, the ‘burden of proof’ or
‘burden of proving their case first’ always reside with the organisation – so your
company will now have to show proof that it was fair in coming to its decision
to dismiss the employee. What do you think the courts look for?

Being a court of equity, the Industrial Court is never concerned about the
number of warning letters you have issued to the employee – as the case above
shows. This to the courts is merely a technicality. Rather, the Industrial Court is
concerned with the ‘substance’ behind your company’s decision to dismiss and
these are the 3 questions it will ask:
1. Evidence that performance targets were clearly established and
communicated to the employee;

2. Evidence that your company provided the employee with guidance/training to

achieve these targets; and

3. Evidence that a reasonable time was given for the employee to improve.

Share managing performance isn’t about issuing the requisite number of

warning letters. Rather, it’s about managing proactively while showing fairness
to the employee.

1. Write out what happened.

You need to write out a history of what led up to you being dismissed.
Remember the 4 “W” – WHO, WHAT, WHERE & WHEN.

Example – John Murphy, my boss (the “WHO”) told me I was fired because I
was always late for work (the “WHAT”) when I was at my desk (the “WHERE”)
at 2pm on Friday dd/mm/yy (the “WHEN”)

You need to write out a statement this way from the very start of the
investigation or disciplinary issues arising. Such a statement will help your
Solicitor prepare the case fully for you. It will also act to remind you, when the
case is coming on for hearing as to what the steps were. We find that where
people write out the full statement they are less likely to forget important
facts.

2. Make Sure you Start From the Beginning

Remember your Solicitor, and the persons hearing your case where not there.
They do not know the premises, the business or the individuals.
Referring to somebody as the “boss” or the “foreman” is not as helpful to them
as “John Murphy the boss” or “Joseph O Reilly the foreman” Set matters out
using the 4 “Ws” WHO, WHAT, WHERE, WHEN. We cannot stress this enough.
By doing this and by setting out any statement date by date or step by step it
helps your Solicitor prepare the best possible case for you.

3. Give Your Solicitor Copies of all Letters, Contracts, Handbooks, Notes of

Meetings or Anything You Received During your Employment.

Especially include anything about any investigation or dismissal however minor

you may think it is. You might not think that these are important but to an
experienced Employment Law Solicitor, they are probably some of the most
important documents to help win your case.