Dismissal: Poor Work Performance | Mlr Attorneys

Dismissal for Incapacity or Poor Work Performance

This is the second instalment in our series to provide a road map to ensure fair workplace dismissals and will focus on incapacity and poor work performance. It will be dealt with in two parts: Poor work performance and Incapacity. We will look specifically at the workplace procedure to be implemented.

Poor Work Performance

One can only glean so much from an interview. That is why it is of paramount importance to implement a probation period when appointing new employees. The purpose would be to gauge whether the employee is able to perform the job he or she was appointed for. The procedure which we will discuss in this article, is therefore not applicable to probationary employees.

When considering implementing the procedure, it is important to distinguish between those employees whose performance can be improved (poor work performance) and those who are unable to improve their performance due to ill health (incapacity). The procedure only applies to employees who may be able to pull up their socks and bring their performance up to scratch.

What an employer therefor aims to achieve through the procedure is:

1. To assist employees to overcome poor performance and to reach the standard or quality of work expected;

2. To promote efficient and productive performance by employees;

3. To enable the employer to function productively; and

4. To enable the employer to identify and apply corrective action where necessary.

The road to follow when an employer has identified an employee who is not performing to standard, entails the following steps:

1. The employee must be given written reasons why the procedure is being implemented;

2. After the written reasons were given, a meeting with the employee must be scheduled and, if the employee so chooses, with the employee’s trade union representative or a fellow employee;

3. In the meeting the employer must:

3.1. Explain what is required (nature of the job and skills required)

3.2. Evaluate the employee’s performance against the aforementioned;

3.3. Give reasons why the performance is seen as sub-standard;

3.4. Give the employee or his/her representative the opportunity to:

3.4.1. Give reasons why he/she is of the opinion that his/her performance is up to standard;

3.4.2. If the employee agrees with employer that the performance is sub-standard, what the reasons therefor are.

4. After listening to the employee, the employer must assist the employee to Improve his/her performance by:

4.1. Assessing with the employee how long it would take to improve;

4.2. Setting out a time frame within which the employer may realistically expect an improvement;

4.3. If required, providing appropriate training;

4.4. Establishing if any reasons for the poor performance is beyond the control of the employee and address those;

4.5. If no improvement could be obtained within the set time frame, the employer must consider, after informing the employee of the outcome of the procedure, to either continue with the steps set out in 4.1. to 4.4. above or to convene a poor performance hearing.

There are very specific requirements for a valid poor performance hearing, including notice to be given, persons allowed at the hearing, and what is required of the chairperson.

Should dismissal be the appropriate action to be taken after the hearing was concluded, the employee is to be informed of his/her rights in terms of the Labour Relations Act.

It is therefore of vital importance to obtain an opinion and/or guidance from an attorney should you, as an employer, be faced with the situation of convening a poor performance hearing.

The next instalment in this series will deal with dismissal for incapacity.

Should you require any assistance, please do not hesitate to contact MLR Attorneys on 021 469 9705 or info@mlrattorneys.co.za.

This article does not constitute legal advice, as all cases are different. It is therefore important to seek the advice of an attorney, with specific reference to your matter. Please contact MLR Attorneys for comprehensive advice.