Poor work performance is an ever increasing challenge in the workplace. Poor work performance refers to an employee failing to reach and maintain the employer’s work performance standards in terms of quality and quantity. The Labour Relations Act, Act 66 of 1995 (“LRA”) sets clear guidelines of how employers should deal with poor work performance in Schedule 8, Code of Good Practice: Dismissal. There is clear differentiation between dismissal for misconduct and dismissal for incapacity. Poor work performance falls under incapacity, which can be due to ill health or poor work performance. It is vital that in cases of poor work performance the employer should follow the correct procedure in handling this matter.
All employment contracts imply that the employee undertakes to perform according to the reasonable, lawful and attainable work performance standards set by the employer. Should the employee fail in this duty, despite assistance to reach the required standards, he/she is said to be “incapable”. The employer now has the right to dismiss the employee.
Please note that the employer can under no circumstances dismiss an employee without following the correct procedure. All dismissals must be procedurally and substantively fair.
Poor work performance procedure
The following steps are typical of a poor work performance procedure:
The employer must invite the employee to a consultation to discuss his/her unsatisfactory work performance. During the consultation it must be established if the problem is indeed poor performance and not misconduct. Take note to talk about the following:
- the required standard of work performance in the workplace;
- duties required of the employee;
- the reasons why the employer is of the opinion that the employee is failing to meet these standards; and
- provide the employee with a clear indication of what will happen if the required standard of work performance is not met.
During the consultation the employee must be afforded an opportunity to state his/her case. The employee must then explain why he/she is not meeting the required standards During all consultations the employee has the right to be heard and may be assisted by a trade union representative or a fellow employee.
The employer must investigate the matter to establish the reasons for the employee’s poor work performance in order to identify the best remedy for the situation. The most common solutions include evaluation, counselling, assistance, training and guidance. Ideally the parties will jointly decide on the most appropriate solution in order to address the employee’s poor word performance. A date for the next consultation and re-evaluation must also be determined.
Implementation of the solution
The employer should take all possible steps to assist the employee. The employer must also provide a reasonable time period for the employee to improve his/her work performance. It is important to monitor the employee’s progress continuously.
Re-evaluation and second consultation
The employee must be re-evaluated after the reasonable time period has lapsed. The employer must communicate the findings of the re-evaluation to the employee during the second consultation. To achieve substantive fairness the employer must be able to prove that the employee failed to meet the work performance standard despite having been given necessary assistance.
If the employee still fails to meet the required standard, a disciplinary hearing must be held where the employee has the opportunity to state his/her case. It is important to establish during this hearing whether dismissal is the appropriate sanction and if any alternatives exist.
Should the employee refer a case of unfair dismissal to the CCMA, the commissioner will consider the following in determining whether the dismissal was unfair:
- Did the employee fail to meet the performance standards and if so:
- was the employee aware, or could reasonably be expected to have been aware, of the required performance standard;
- was the employee given a fair opportunity to meet the required performance standard;
- is dismissal an appropriate sanction for not meeting the required performance standard.
Employers must manage various business risks daily. The best way to manage these risks is to be proactive. The employer must ensure that all employment contracts, disciplinary code, procedures and policies are in place and complies with applicable legislation.
Contact the LWO for more information.
LWO Regsadviseur - LWO Legal Advisor
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