§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]