Employers are often confronted with their employees’ lacking performance and uncertainty often arises regarding the proper way of addressing such situations. This in turn results in employees not being afforded an opportunity to bring their performance up to the required standard and employers finding themselves on the wrong side of a labour dispute.
There is a vast difference in the procedure for dealing with misconduct versus that of poor performance.
Misconduct relates to the employee’s unacceptable behaviour or the breaking of a company rule. It requires disciplinary action and, in the case of serious misconduct such as stealing or assault, may even lead to dismissal. Poor work performance on the other hand relates to an employee’s inability to meet set standards and required levels of performance.
An employer’s duty in dealing with a case of poor performance is somewhat onerous and it is not just a case of showing the employee the door – unless the employer favours a visit to the CCMA. Should it appear that an employee lacks the ability to meet required performance standards, the employer is obliged to provide a measure of assistance.
Schedule 8 of the Labour Relations Act (the Code of Good Practice) provides certain guidelines when dealing with dismissals for poor work performance. The Code stipulates three aspects to be considered when deciding whether a dismissal for poor work performance is fair:
- Whether the employee was aware or could reasonably be expected to be aware of the required performance standard;
- Whether the employee was given a fair opportunity to meet the required performance standard; and
- Whether dismissal was an appropriate sanction for not meeting the required performance standard.
The employer must therefore firstly ensure that all employees are made aware of its expectations, standards and targets. Should it appear that an employee fails to meet such standards, the employer must meet with such employee and inform them of the failure. The parties should then try and establish the cause thereof. It may be work-related, such as working conditions, or even personal circumstances such as a traumatising event in the family. The employer is expected to provide assistance, training and counselling to the employee and give the employee a proper opportunity to rectify the situation.
Should the employee still fail to meet the required standards, alternatives to dismissal such as a demotion or alternative position must still be considered by the employer, subject to its operational requirements. Should you have a need to review your work performance standards, as well as the mechanisms in place to enforce such standards, we at Hinrichsen Attorneys are always able to assist with your employment law requirements.
Prepared by Chinette De Beer
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