Is Incompetence Due to an Employee Being "Unable to Do It" or "Unwilling to Do It"? Two Things Companies Must Clarify Before Termination

Company owners often ask me: "If an employee performs poorly, the company can just dismiss them, right?"

I always tell them: That is not how it works.

Although Article 11, Paragraph 5 of the Labor Standards Act stipulates that an employer may terminate a labor contract with advance notice when a worker "is confirmed to be incompetent to perform the work assigned to them," the court looks beyond mere work output if a dispute over the dismissal's legality goes to litigation. Judges examine the situation from two distinct angles: "unable to do it" versus "unwilling to do it."

Both scenarios may constitute incompetence, but the company must substantiate them with entirely different forms of evidence.

1. Objectively "Unable to Do It"

It is not a lack of effort, but a shortfall in ability, academic background, or skills that fails to meet job requirements.

"Unable to do it" refers to a situation where an employee, despite being willing to work hard, still cannot reach the company's reasonable performance standards.

Examples include lacking essential specialized knowledge, possessing insufficient technical skills, or suffering from physical or mental conditions that impair work capability.

However, a company cannot deem an employee incompetent simply based on a supervisor's remark that "their ability is inadequate." The employer must first verify whether the performance standards are reasonable, whether the employee received necessary training, and whether the company provided adequate support and resources.

2. Subjectively "Unwilling to Do It"

It is not a lack of ability, but possessing the capability yet refusing to do the job properly.

"Unwilling to do it" occurs when an employee clearly possesses the capacity to perform the job, yet without justifiable cause refuses to fulfill their expected workplace duties.

Examples include routinely delaying assignments without cause, defying reasonable managerial directives, or persistently refusing to rectify deficiencies despite being fully aware of them.

However, voicing differing opinions, refusing unlawful orders, or objecting to unreasonable demands cannot be branded as "unwilling to do it." The company must present concrete evidence proving that the employee failed to fulfill their legally required job responsibilities.

3. Practical Case Examples

Even when faced with identical poor sales results, a court's judgment can differ drastically.

Consider two sales representatives who both fail to reach their sales targets for six consecutive months:

• Employee A diligently visits clients, but due to unfamiliarity with the product line, consistently fails to close deals. In this case, the company should first offer training, workplace coaching, or a transfer to a more suitable role.

  
  

• Employee B possesses strong sales capabilities, yet frequently skips client meetings without justification and refuses to follow reasonable instructions to improve performance. If the company maintains comprehensive records of this behavior, it may evaluate whether grounds for termination due to incompetence are met.

  
  

Regardless of the scenario, dismissal should never be an employer's immediate first step.

[Attorney Chen Yeh-hsin's Advice]

When dealing with underperforming staff, an employer's priority should not be rushing to prove that an employee is "bad." Instead, establish clear, objective evaluation standards and maintain a documented trail of evidence to determine which of the two categories the situation falls into.

In court, the judge will require the employer to bear the burden of proof, demonstrating the objective or subjective facts proving that the worker "is confirmed to be incompetent to perform the work assigned."

When departmental managers demand the termination of an underperforming worker, HR must act as the essential gatekeeper by asking: "What benchmark was used to measure this? Is the employee objectively unable to do the job, or subjectively capable yet unwilling to do it?"