Lots of boxes to tick when proving poor employee performance

IN ESSENCE, managers and supervisors are paid to manage and supervise two things, employee conduct and employee performance. From an employment law point of view, the conduct aspect of management becomes important when the employee’s conduct becomes misconduct.

Misconduct is a blameworthy act or omission that requires employers to institute a disciplinary process.
On the other hand, the type of poor performance, addressed in the Labour Relations Act, is the non-blameworthy, incompetence specie of poor performance. After all is said and done, poor performance is either blameworthy or not blameworthy.

Put differently, sometimes an employee can be blameworthy for their poor performance and other times they can’t be.

If it can be proven that the employee is blameworthy for their performance, a disciplinary procedure is followed because the employer is able to prove that the employee was capable of better performance than they delivered, importantly, in circumstances where there were no extraneous factors causing the poor performance over which the employee had no control.
In circumstances where it cannot be proved that the employee is blameworthy or at fault for his or her poor performance, there is no misconduct. Rather, there is incapacity, meaning that the employee’s performance is poor, but for reasons beyond their control.

The Labour Relations Act obligates employers to follow a counselling, not misconduct, procedure in an incapacity-related scenario of poor work performance, and not one of misconduct.
In fact, there are even occasions where there are elements of both incapacity and misconduct in an employee’s poor performance.

The Labour Court recently passed judgment in the case of Moneyline Financial Services (Pty) Ltd v Tsientsi Chakane & 1 other JR2454 /17. This was a case that dealt with a dispute relating to the management of poor work performance.

The background to this case, as described in the judgment, was that “the respondent employees failed to achieve the performance targets between September 2016 and January 2017. On October 12, 2016, the first letter warning the respondent employees of poor work performance was issued in respect of September 2016. On November 9, 2016, a second letter serving as an ultimatum was issued in respect of the respondent employees’ poor work performance for October 2016. The respondent employees were afforded the opportunity to make written representations wherein they were to give reasons for failing to meet the performance targets. The applicant (the employer) found their explanation unacceptable. On January 18, 2017, the respondent employees were served with the notices to attend performance enquiries respectively.” and ultimately dismissed for poor work performance.

At the Commission for Conciliation, Mediation and Arbitration, the arbitration award held that the dismissals were substantively unfair as “the dismissal was not an appropriate sanction as training could have been a reasonable alternative. He accepted that the reasons proffered by the respondent employees for non-performance as genuine and plausible given the context of the industry they operated in.”

The employer took this arbitration award on review to the Labour Court, which dismissed the review application and upheld the arbitration award’s finding that the dismissals for poor performance were substantively unfair.

In so doing, the judgment emphasised what was held in Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and Arbitration and Others (2014) 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC), namely that: “In order to find that an employee is guilty of poor performance and consider dismissal as an appropriate sanction for such conduct, the employer is required to prove that the employee did not meet existing and known performance standards; that the failure to meet the expected standard of performance is serious; and that the employee was given sufficient training, guidance, support, time or counselling to improve his or her performance but could not perform in terms of the expected standards.

“Furthermore, the employer should be able to demonstrate that the failure to meet the standard of performance required is due to the employee’s inability to do so and not due to factors that are outside the employee’s control.”

The judgment continued that: “In the present case, the applicant failed to show that the respondent employees were given sufficient training, guidance, support, counselling and reasonable time to improve their performance. The respondent employees had genuine concerns that were outside their control and could have been managed with the assistance from the applicant.

“Clearly, the commissioner correctly found that the applicant failed to explore alternative measures short of dismissal, like training. It follows that the applicant failed to show that the dismissal of the respondent employees was an appropriate sanction.”

Tony Healy is a
labour law expert at
labour law consultancy
Tony Healy & Associates.
Visit www.tonyhealy.co.za.
Call 0861 115 375 or email [email protected]

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