§76-41 Performance appraisal systems; failure to meet performance requirements. (a) There shall be established and maintained performance appraisal systems for the purpose of evaluating the performance of employees in the civil service and improving the employees' performance. The performance appraisal systems shall be the basis for evaluating whether employees in the civil service meet the performance requirements of their respective positions as required in section 76-27. For the purposes of this section, "performance requirements" includes any qualification required for the position such as a license.

(b) An appointing authority may release an employee from the employee's position or discharge an employee from service if the employee fails to meet the performance requirements of the employee's position under the following conditions:

(1) The evaluation process and its consequences were discussed with the employee;

(2) The employee was made aware of the employee's current job description and job-related performance requirements;

(3) The evaluation procedures were observed, including providing the employee the opportunity to meet, discuss, and rebut the performance evaluation and apprising the employee of the consequences of failure to meet performance requirements;

(4) The evaluation was fair and objective;

(5) The employee was provided performance feedback during the evaluation period and, as appropriate, the employee was offered in-service remedial training in order for the employee to improve and meet performance requirements;

(6) The evaluation was applied without discrimination; and

(7) Prior to the end of the evaluation period that the employee is being considered for discharge due to failure to meet performance requirements, the feasibility of transferring or demoting the employee to another position for which the employee qualifies was considered.

(c) Any civil service employee who fails to meet performance requirements shall have the right to grieve under:

(1) A collective bargaining grievance procedure that culminates in a final and binding decision by a performance judge pursuant to section 89-10.8; or

(2) The departmental complaint procedure that culminates in a final and binding decision by the merit appeals board under section 76-14.

The performance judge or the merit appeals board, as the case may be, shall use the conditions in subsection (b) as tests in reaching a decision on whether the employer's action, based on a failure by the employee to meet performance requirements of the employee's position, was with or without merit. [L 1955, c 274, pt of §1; RL 1955, §3-21(u); am L 1961, c 41, §1; HRS §76-41; gen ch 1985; am L 1994, c 56, §21; am L 1998, c 52, §1; am L 2000, c 253, §23]