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

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

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

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

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

(4)  The evaluation was fair and objective;

(5)  The employee was provided performance feedbackduring the evaluation period and, as appropriate, the employee was offeredin-service remedial training in order for the employee to improve and meetperformance requirements;

(6)  The evaluation was applied withoutdiscrimination; and

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

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

(1)  A collective bargaining grievance procedure thatculminates in a final and binding decision by a performance judge pursuant tosection 89-10.8; or

(2)  The departmental complaint procedure thatculminates in a final and binding decision by the merit appeals board undersection 76-14.

The performance judge or the merit appealsboard, as the case may be, shall use the conditions in subsection (b) as testsin reaching a decision on whether the employer's action, based on a failure bythe employee to meet performance requirements of the employee's position, waswith 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]