Employment law
Poor performance: analyse before you sanction
In the Bani Pharma Distribution warehouse, scanners beep between the shelves and boxes of medicines leave for pharmacies across Bamako. For three months, the orders prepared by Oumar have come back with twice as many errors as those of his colleagues. The director is already talking about a warning, then dismissal for misconduct. Before sanctioning, you need to understand why Oumar is making mistakes: the right solution, and the soundness of any termination, depend on the answer.
Bani Pharma Distribution is a pharmaceutical wholesaler-distributor with 45 employees, based in Bamako. We will follow Oumar, an order picker for four years, and Awa, his team leader. This company and the people mentioned are fictitious: their names are used for illustration only.
1. What exactly are we talking about?
Poor performance (insuffisance professionnelle) is the situation of an employee who cannot perform their work properly despite the resources provided, without any ill will on their part. It differs from misconduct, which is a deliberate breach of a contractual obligation: a refusal, deliberate negligence.
Faced with poor results, the usual reflex has two stages: find the person responsible, then urge them to do better, sometimes with a few threats. This reflex often fails, because poor results describe a symptom, not a cause. Until the cause is identified, the solution applied is unlikely to be the right one.
Why the analysis is also legal protection
The Labour Code does not define poor performance. It does, however, require every dismissal to rest on legitimate grounds, meaning a real and accurate reason, and it places the burden of proving those grounds on the employer if they are disputed (Labour Code, article L.51). Analysing the causes therefore serves twice: it helps solve the problem and, if termination becomes unavoidable, it provides the evidence.
Poor results are a symptom. Until the cause is found, the sanction misses its target.
2. Three possible causes, rarely just one
An employee's poor results rarely have a single cause. They usually combine three families of causes, each calling for a different response.
| Cause | Question it raises | Solution it calls for |
|---|---|---|
| Lack of competence | Does he know how? | Training, support, mentoring |
| Lack of motivation | Does he want to? | Deal with the factors of demotivation |
| Obstacles to the work | Can he do it? | Remove material and organisational obstacles |
The most common mistake
Thinking first "he is not up to the job". It is the cause that comes to mind spontaneously, and often the wrong lead. Start with obstacles: they are the least visible causes from an office, and the cheapest to correct.
3. Look for obstacles first: go and see the workstation
Obstacles are the material or organisational factors that prevent employees from doing well, even when they know how and want to. They fall into two categories.
- Organisational difficulties: unsuitable hours, missing tools, repeated breakdowns, procedures that do not match the actual work, colleagues who do not cooperate.
- Information difficulties: documents that arrive too late, decisions that are not taken. They force the employee to make extra efforts that erode results.
Awa spends a morning beside Oumar instead of summoning him. She discovers that his scanner loses its connection in the back aisle, that the new labels confuse two strengths of the same medicine, and that the list of urgent orders is printed an hour late.
The most common mistake
Summoning the employee instead of observing the workstation. Obstacles can only be seen from the workstation itself.
What you need to do
- Observe the employee at the workstation during a full work sequence.
- Record in writing the tools, information and procedures that slow the work down.
- Fix simple obstacles first and note the date of each correction.
4. Test motivation: what happens when he does well?
The aim is to check whether factors of demotivation are present. They come from two sources.
The first is the employee: they pursue personal goals that run counter to the expected action. When those goals are not met, frustration sets in, at the expense of results.
The second is the work environment, in three forms:
| Form | What the employee learns |
|---|---|
| He suffers negative consequences when he does what is expected: efforts ignored, a remark about a detail | That doing well does not pay |
| He suffers no consequences when he does not do it | That not doing it costs nothing |
| His managers or experienced colleagues set a bad example | That the right behaviour is not the one that is valued |
At Bani Pharma Distribution, Oumar used to check every box twice. The director only ever mentioned his slowness, while colleagues who skipped the check were praised for their speed. Oumar sped up, and his errors increased.
These three forms have one thing in common: they do not depend on the employee. They are corrected on the management side.
What you need to do
- Check what feedback the employee receives when he does well, and when he does not.
- Align praise and criticism with the behaviour actually expected.
- Set the example at management level.
5. Check competence: the deciding question
Three questions show whether the problem stems from a lack of competence.
- Does the employee sometimes succeed at the expected task? If yes, he knows how: the cause lies elsewhere. If not, a lack of competence is possible.
- Does the task require specific knowledge or a technique? If yes, a lack of competence is plausible: the employee's training and experience need to be examined.
- Does the task rather require a personal quality, such as listening or attention to detail? If yes, a lack of competence may be linked to it.
The first question is the quickest and the most decisive. Oumar prepared his orders almost without error for three and a half years: he knows how. His problem is not competence.
The tools provided by the Code
The probation period is the time set aside to judge a new employee's competence. Stipulated in writing and limited to six months including renewal (Labour Code, article L.30), it can be ended without notice or compensation (Labour Code, article L.33). Once probation is over, this flexibility disappears.
To fill a genuine skills gap, the contract or a written amendment may provide for training, with its objectives, duration and pay (Labour Code, article L.9). If the training is costly for the company, a written clause may require the employee to remain in its service for a period linked to the cost, not exceeding four years; this clause is filed with the labour inspectorate (Labour Code, article L.12).
What you need to do
- Check past results to see whether the employee has already succeeded at the expected task.
- Offer training in writing when a lack of competence is established.
- File with the labour inspectorate any service-commitment clause linked to costly training.
6. The approach, step by step
| Step | What to do | What to keep in writing |
|---|---|---|
| 1. Describe the symptom | What precise gap, on which task, since when? | Dated figures showing the gap |
| 2. Look for obstacles | Observe the workstation: tools, information, procedures | The observation report |
| 3. Look for demotivation | Examine what happens when he does well, and when he does not | The interview with the employee |
| 4. Check competence | Does he sometimes succeed? Does the task require a technique? | The review of past results |
| 5. Apply the solution | Each cause calls for a different response | The measures decided and their date |
| 6. Reassess | Has the gap narrowed? | The new figures |
The order matters: it runs from the least to the most costly. Replacing a scanner costs less than training, and far less than recruiting a replacement.
At Bani Pharma Distribution, the scanner was replaced, the labels redone and the list of urgent orders printed at opening time. Six weeks later, Oumar's error rate was back to the team's level.
What you need to do
- Follow the six steps in order, without jumping straight to a sanction.
- Keep a dated file for each step.
- Set a reassessment date as soon as measures are decided.
7. When the analysis is not enough: poor performance or misconduct?
Suppose the gap persists, even though obstacles have been removed, demotivating factors dealt with and training offered. Two paths open up, and they must be carefully distinguished.
| Point | Poor performance | Misconduct |
|---|---|---|
| What is alleged | Failing to succeed despite the resources provided | Deliberately refusing or neglecting |
| Possible response | Dismissal on legitimate grounds | Sanction set out in the internal rules, or even dismissal |
| Notice | Due (L.41) | Due, except for gross misconduct (L.41) |
| Severance pay | Due after one year of service (L.53) | Due after one year, except for gross misconduct (L.53) |
The dismissal procedure
In both cases, the employer informs the labour inspector by registered letter stating the grounds, and the inspector has 15 days to give an opinion (Labour Code, article L.40). Notice is given in writing and states the grounds (articles L.41 and L.43). If the employee is a staff delegate, the inspector's prior authorisation is compulsory (article L.277). For the detailed procedure, see Dismissal on grounds of poor performance.
The disciplinary route
If the employee acts with deliberate ill will, the response is disciplinary. The rules on discipline are set out in the internal rules (Labour Code, article L.64). Suspension may not exceed 8 days (article L.34), and fines are prohibited (Labour Code, article L.69). See Disciplinary sanctions and Disciplinary suspension.
What confusing the two costs
Treating poor performance as gross misconduct deprives the employee of notice and severance pay. If the court rejects gross misconduct, those sums become due again (Labour Code, article L.53).
Example. Oumar has 4 years' service and earns an average of XOF 180,000 a month. Bani Pharma Distribution dismisses him for "gross misconduct", but the court finds simple poor performance.
One month's notice: XOF 180,000
Severance pay: 180,000 × 4 × 20% = XOF 144,000
Minimum total: XOF 324,000
Plus damages if the dismissal is found unfair (article L.51)
If the dismissal is justified but the written notification or statement of grounds was omitted, the court also awards compensation of up to one month's gross salary (article L.52).
Failing to succeed is not refusing to do.
What you need to do
- Classify the problem before any decision: poor performance or deliberate ill will.
- Reserve gross misconduct for deliberate breaches of exceptional seriousness.
- Follow the dismissal procedure and pay notice and severance in cases of poor performance.
A closer look: "legitimate grounds", not "real and serious cause"
Many template letters in circulation refer to a "real and serious cause" or "serious misconduct". These concepts come from French labour law.
The Malian Labour Code uses different words, and they have precise effects. Dismissal must rest on legitimate grounds, which the employer proves if they are disputed (article L.51). Only gross misconduct allows termination without notice and refusal of severance pay (articles L.41 and L.53). A letter citing "serious misconduct" to deprive an employee of their rights therefore relies on a concept foreign to Malian law.
Key takeaways in 6 points
- Treat poor results as a symptom, and look for the cause before any sanction.
- Start by observing the workstation to identify material and information obstacles.
- Check what feedback the employee receives when he does well, and correct contradictory messages.
- Ask the deciding question first: does the employee sometimes succeed at the task?
- Keep a written, dated record of every step, because the burden of proving the grounds is on you.
- Do not confuse poor performance with misconduct: only gross misconduct removes notice and severance pay.