Undoubtedly, it is within each employer’s discretion to determine and implement reasonable employment performance standards it requires from its employees. As a logical corollary of this right, an employer is entitled to dismiss employees who fail to meet these standards. This entitlement is, however, not absolute and a dismissal for poor work performance must, as with all forms of dismissal recognised in South African law, be both procedurally and substantively fair.
Dismissals for poor work performance fall under the general category of dismissals for incapacity. Other instances of dismissal for incapacity include ill-health, injury and other analogous grounds which render an employee incapable of performing his/her employment services at the standard required by the employer. The Labour Relations Act, 66 of 1995 (“the Act”) recognises incapacity as a legitimate ground for dismissal.
Substantive Fairness
When considering whether a dismissal for poor work performance was substantively fair, the CCMA or subsequent court, will take cognisance of whether:
- The employee should have been aware, or could reasonably have been aware, or could reasonably have been expected to be aware, of the required performance standard.
This element is determined as a question of fact and considerations include whether the required performance standard was communicated to the relevant employee, the manner in which it was communicated, the nature of the employee’s position and the employee’s representations regarding his/her skills, qualifications and competence.
- The employee was given a reasonable opportunity to improve and meet the required performance standard.
Insofar as possible, depending on the particular circumstances of the situation, an employer should assist and support an employee by offering training, mentoring, counselling or any other assistance affording the employee a reasonable opportunity to meet the required performance standard. If the possibility exists that the employee could meet the required performance standard with the above assistance and within a reasonable period of time, it will be difficult for an employer to justify dismissal.
- Dismissal was an appropriate sanction for failing to meet the required performance standard.
In matters relating to poor work performance, dismissal should only be considered as a last resort. A dismissal for poor work performance could be held to be substantively unfair should it be found that (a) the employee could meet the required performance standard if given the necessary assistance and a reasonable opportunity to do so; or (b) where the employee could have been redeployed to another position, more suited to his/her abilities, even if this would be tantamount to a demotion.
Procedural Fairness
Procedurally, the Code of Good Practice: Dismissal (“the Code”) distinguishes between probationary employees and non-probationary employees. This differentiation notwithstanding, the general dismissal procedure required in respect of both probationary and non-probationary employees is substantially similar.
Essentially, fair procedure in the context of poor work performance dismissals requires the employer to:
- Carefully assess the employee’s work performance;
- Counsel, mentor and assist the employee prior to taking further action;
- Monitor the employee’s performance on an ongoing basis during and after the period of counselling, mentoring and/or provision of other assistance;
- Notify the employee that he/she may be dismissed should their performance not improve;
- Allow the employee a reasonable opportunity to improve and to remedy the shortcomings in their work performance; and
- Afford the employee the opportunity to state his/her case before taking final action.
Typically, the employee will be placed on a performance improvement plan with set performance targets for the duration of the performance review process. At the conclusion of the process, an appraisal of the employee’s performance must be conducted prior to termination proceedings being considered.
Incapacity Enquiry (Hearing)
The convening of an Incapacity enquiry is the final stage in the poor work performance process and is conducted in substantially the same manner as a disciplinary hearing for misconduct. The purpose of the Incapacity Enquiry is to establish whether the relevant employee is capable of attaining the standard of performance required by the employer. Should the chairperson of the enquiry determine that the employee is incapable of attaining this standard, the employee will be dismissed. In such an enquiry, the employee is afforded the same procedural rights afforded to employees facing misconduct proceedings which include the right to be represented by a fellow employee or trade union representative, the right to call and cross-examine witnesses and so forth.
In conclusion, employers should ensure that probationary and non-probationary employees are, amongst other things, aware of the required performance standards applicable to their position, give employees necessary guidance, counselling, mentoring and training to ensure satisfactory service, and to allow reasonable time for employees to improve the standard of their work performance. It is imperative that employers ensure that any dismissals relating to poor work performance are fully compliant with the Act and the Code of Good Practice: Dismissal (and any other applicable labour legislation).
For further assistance and/or advice regarding dismissals for poor work performance or the handling of poor work performance review process, please do not hesitate to engage with our team of attorneys who will happily assist.
Written by Peter Turner & Tshiamo Monyai.