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How to cope with problem employees

How to cope with problem employees
Looking at matters from the head office’s point of view, you may think that Japanese companies have to care for its employees to a very high degree. Nonetheless, once it comes to a court case, it is no use if you do not have evidence that proves employee’s problem ability. To avoid this, you have to provide documents showing the level that the company requires, the level that the employee has and what kind of efforts have been made to close the gap between them.

Employers tend to assume that the judge will accept their statements and pleas in mediation or tribunal. however, it is not good enough just to have a written statement or plea of your opinions. A judge will base his conviction on the evidence proving those opinions.

A company might state, “Actually, the real situation was like this… With such terrible problems, he caused customers trouble to such an extent… The company has suffered damage.” If you gave warnings against this conduct in emails, it would be good. But, if they were made verbally, it would be questioned where the evidence to support them is. To avoid this, it would be a good idea to give written notice that, “Although we have given you instructions on abc (date) and xyz (date), your behavior is efg. We do not see any improvement in spite of our warnings”. Then, there is a possibility that you do not have to submit prima facie evidence showing that you have given instructions on xyz (date) and efg (date). As such, it is essential to formulate instruction booklets and cautionary notes strategically.

What I often hear from my clients regarding employees they would like to give sanctions is, “They don’t get it, although we have said it so many times.” I say, “Then, please say it in writing”. They often reply, “There is nothing in writing.” If you put up with this kind of problematic employee for a long time, your anger will suddenly reach its limit one day, But I’d like you to avoid such situations.

And you might consult the head office. The head office will almost certainly say, “Lay off such an employee!” Subsequently, you would have to proceed with termination without enough preparation.

In a lawsuit, proving poor performance or lack of suitability can be more difficult than you think. Even if everyone at a workplace feels that a particular employee is unsuitable, the judge, being an outsider with no knowledge of the nature of the work or the performance standards required at the workplace, will find it very difficult to understand the reason why. So, there will be a need to find a way to clarify good or poor performance and the employee's suitability or unsuitability by, for example, setting performance goals, giving clear instructions, and allowing the employee time to achieve them.

First, the company should clearly inform the employee concerned that his/her performance is poor, and reach an understanding with him/her on what the problem is.
This is why the company has to provide poorly performing employees with a clear written statement of the reasonable performance standards it requires.

It will be hard to prove poor performance if, by the time the point of voluntary severance or dismissal has been reached, several warning notices have not been issued or performance agreements made.

Second, the poorly performing employee should be urged to improve his/her performance. For this purpose, he/she must be given notice to improve performance within a certain period (three months, six months, etc.), and there must be checks and feedback on progress (in this case) every one to two weeks to raise the employee's awareness of his/her performance. However, it is important to note that superiors will have difficulty accepting a period of notice which is too long.

Make clear what standards (for eligibility for permanent employee status) the company expects, and have the employee check carefully whether they have been achieved. If both company and employee can in this way come to agreement on whether these standards have been achieved, the risk of dispute between them will be reduced. If both parties have the same understanding, then the employee may agree to resign and avoid dismissal, providing a good outcome for both sides.
Should the poorly performing employee fail to reach an acceptable level of performance despite efforts to improve, then it can’t be help to consider termination of his/her employment, either by voluntary severance or dismissal, will be necessary.

Third, if the company does not opt for voluntary severance or dismissal then the employee should be assigned simpler duties with a corresponding change of his/her terms of employment. If this cannot be done through a demotion, then the employee's consent to the change will need to be obtained.

There are many of our clients who, after a problem grows large, get flustered and come to us for this kind of consultation. In this type of case, the problem's resolution will incur time, emotional energy, as well as a financial cost. The surrounding employees' motivation will also be effected.
We encourage you, on a regular basis, to be willing to discuss anything related to your employees. Please use our contract-based consultation service to resolve problems while still in the early stages.


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