Poor work performance is, by definition, the inability or unwillingness of an employee to perform in terms of the employer’s expectations when it comes to matters of quantity, quality or both of an employee’s job description. Is an employer obliged then to simply put up with poor work performance in the workplace or does the employer have a remedy?
Item 9 of Schedule 8 (Code of Good Practice: Dismissal) of the Labour Relations Act, the Act in our law which regulates labour relations generally, deals with the guidelines in cases of dismissal for poor work performance and provides as follows:
Any person determining whether a dismissal for poor work performance is unfair should consider—(a) whether or not the employee failed to meet a performance standard; and(b) if the employee did not meet a required performance standard whether or not—
(i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;(ii) the employee was given a fair opportunity to meet the required performance standard; and(iii) dismissal was an appropriate sanction for not meeting the required performance standard.
Section 188 of the Labour Relations Act provides, furthermore, that if a dismissal is not automatically unfair, it is unfair if the employer fails to prove –(a) that the reason for dismissal is a fair reason related to the employee’s conduct or capacity; or based on the employer’s operational requirements; and(b) that the dismissal was affected in accordance with a fair procedure.Therefore, in order for an employer to fairly terminate a contract of employment based on an employee’s poor work performance, it will need to establish that it had a fair reason to terminate the contract of employment and that it followed a fair procedure in doing so.
Fair reason: A fair reason entails, in the main, compliance by the employer with item 9 of schedule 8 of the Code of Good Practice. This means that the employer should, as a minimum:
Establish a performance standard that it expects an employee to meet. This can be done in a number of ways. Firstly, the standard can be set out in the employee’s jobdescription. Secondly, reasonable targets that the employee is required to meet can be set and communicated to the employee. Thirdly, the employee’s performance may bemeasured against key performance indicators (KPI’s). There may be other ways to establish a performance standard but the important part is that the employee is aware of what standard he or she is required to meet. Any employer has the right to establish reasonable requirements in terms of the output and the standard of work required of the employee.
Establish whether the employee failed to meet that standard. This will depend largely on the nature of the standard. It could be determined, for example, by the employerdemonstrating that the employee persistently failed to perform tasks set out in the job description. It might also mean that targets set are not being achieved. Whatever thenature of the poor performance, the employer should be able to demonstrate that a particular standard is not being met.
Establish that the employee was given a fair opportunity to meet the required performance standard. Usually, when the poor performance is first brought to theemployee’s attention, the employer will highlight the areas of non-performance, reiterate the standards which the employee is required to meet and then set a reasonable timeframe by when these standards must be met. I refer to this time frame as the evaluation period. During this evaluation period, the employer should offer ongoing support, advice and assistance to the employee to meet the standard. It may also mean that if at the end of the evaluation period, the standard has improved but not yet to the level required, the employer may extend the evaluation period further in order to achieve the required standard. The duration of the evaluation period and the number of times that the standard is measured will depend on the facts of each case and the nature of the poor work performance. In all instances, our advice to clients is to err on the side of generosity. After all, it’s in everyone’s interests that the employee does perform to the required standard.
Establish that dismissal was an appropriate sanction for not meeting the required performance standard. If the employee is still not able to meet the requiredperformance standard after the steps mentioned above have been implemented, an employer may be justified in terminating the employee’s contract of employment on thegrounds of poor work performance. Dismissal, however, should always be the last resort.
Fair procedure:In summary, a fair procedure entails that the employer should convene and then summon the employee to attend a disciplinary enquiry to answer allegations of poor work performance. The chairperson of the enquiry should be someone not involved in the steps leading up to the enquiry such that this person can preside over the meeting in an unbiased and impartial manner. The purpose of the enquiry is to determine whether there are grounds for dismissal after the person chairing the enquiry has heard the evidence presented by the employer to substantiate the allegations of poor work performance and has also given the employee an opportunity to respond to these allegations. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken by the chairperson, and preferably furnish the employee with written notification of that decision.
Marshall Attorneys are well experienced in the field of Labour Law. We would be happy to assist or offer advice to you in matters such as the above, or in any other matter in the field of labour law that you might need assistance in.
Please contact Clifford Marshall on (011) 787-4027 or cliff@marshallattorneys.co.za or visit our website atwww.marshallattorneys.co.za