Employees, when dismissed by their Employers are in many cases dismissed for some form of misconduct on the Employee’s part. However, dismissal for poor work performance has risen substantially in the period of COVID-19, often because the normal circumstances whereby an Employee is monitored and mentored on the worksite or in the workplace was and is not possible during the COVID-19 pandemic. South African labour laws do indeed recognise circumstances of dismissal for poor work performance, and despite the COVID-19 pandemic, the manner in which an Employer should deal with an Employee performing poorly remains unchanged, for now.
South African labour laws recognise that an Employer may require the Employee to perform work of an acceptable or adequate standard that is at the discretion of the Employer, by nature of its trade or sector. The principles outlined hereinbelow serve only as a guideline, as Employers and their workplaces notably differ in size and in nature, and accordingly, based on the specific workplace, trade and sector, Employers should follow the appropriate and lawful steps in cases where they wish to dismiss an Employee for poor work performance.
Setting performance standards in the workplace
Any Employer may set certain performance standards which Employees would be required to meet in order to remain employed. However, there is no hard and fast rule in South African labour laws on what these standards are, other than that the standards set by the Employer in the workplace must be lawful, reasonable, relevant to a specific workplace and finally, it must be known to the Employee. Furthermore, the standards of performance set by the Employer must be communicated to the Employee, whether it be verbally, set out in the Employee’s Contract of Employment, set out in various workplace policies or in terms of monthly or quarterly targets set for the Employee. The aforementioned is not an exhaustive list. There are a multitude of ways an Employer can communicate, and measure performance standards and these aforementioned measures may very well vary according to the nature of the business.
Assessing the Employee’s performance in the workplace
Assuming an Employee is aware of his or her standards of work performance and how same is measured, the Employer has the right to measure the Employee’s work performance against the set of known work performance standards required of the Employee. If the Employee fails to meet the required standards, the Employer or designated representative of the Employer such as a Human Resources Manager should immediately consult with the Employee and inform the Employee that his or her work performance does not meet the required standards of the Employer. In addition, the Employer or designated representative should discuss possible workplace causes of the poor performance and if identified as such, the Employer should endeavor to rectify the workplace-based causes of the Employee’s poor work performance. Examples of workplace-based causes may be an unreasonable workload or broken equipment, or any circumstances which are completely out of the Employee’s control but are the cause of the poor performance.
Via consultation with the Employee, the Employer must decide on ways in which the performance can be improved, including further training, guidance and counselling sessions. Should an Employer fail to allow the Employee a chance to improve his or her work performance via further training, guidance and counselling and proceeds to dismiss the Employee for poor work performance, the Employee may very well have reasonable prospects of success in referring an unfair dismissal to dispute to the CCMA or relevant Bargaining Council. Even further to training, guidance and counselling, the Employer should set realistic time frames for the Employee to achieve the workplace performance standards required of the Employee. It is highly recommended that the Employer provide the Employee with regular feedback sessions with a direct supervisor or direct manager to discuss the Employee’s progress.
The consequences of non-improvement
If the Employee’s performance is still poor after a reasonable time frame which consisted of further training, guidance, counselling and regular feedback sessions with the Employer’s direct manager or direct supervisor, the Employer should communicate the following to the Employee:
a) that the expected standard of workplace performance has still not been met;
b) the seriousness of the matter and that a formal poor performance enquiry will be held if necessary, that could potentially lead to the Employee’s dismissal;
c) that the Employee will be given an opportunity to respond to the allegations of poor workplace performance;
d) that the Employee may be assisted by a fellow employee or a union member at the enquiry;
e) that the Employee may call witnesses or provide proof in support of his or her case that he or she in fact did meet the workplace performance standard or evidence that the standard was completely unreasonable and impossible to meet;
f) that the Employee has a right to an interpreter, if needed.
The purpose of the poor work performance enquiry is to determine, inclusive but not limited to, whether or not the Employee failed to meet a performance work standard; and if the Employee did not meet a required performance work standard – whether or not the Employee was aware or could reasonably be expected to have been aware of the required performance standard. Finally, it is imperative to establish that the Employee was given a fair opportunity to meet the required performance standard before the Employer dismisses the Employee. It must be noted that any dismissal of an Employee, whether it be for misconduct or poor work performance must be carried out via a fair and proper procedure (the enquiry) and for a fair substantive reason, being that the Employee is incapable of meeting the required standards of performance in the workplace.
Source: www.golegal.co.za | Provided By ARNOLD LAW – LEGAL CONSULTANCY | By FADIA ARNOLD