BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: [email protected].
If employees receive their pay they are obliged by law to do their jobs properly. Although the law allows employers, within reason, to decide what the proper standards of performance are, the employer will, if taken to the CCMA, be required to prove that:
- The employee knew what the required performance standard was
- The standard was realistically achievable
- The employee was given sufficient opportunity to achieve the standard
- It was the employee’s fault that he/she failed to achieve the standard.
We look at each of these four requirements:
- DID THE EMPLOYEE KNOW WHAT THE PERFORMANCE STANDARD WAS?
It would be unfair to fire an employee for failure to attain a target if the employer had, for example, failed to inform the employee that he/she was required to make 10 sales per month, reach 2 million rand turnover per year, make 40 appointments per month, build 25 houses per year, pack 100 boxes per month or make 3 widgets per hour. - WAS THE STANDARD ACHIEVABLE:
For example, if other employees have been able to type letters without making mistakes the employee who keeps making errors despite having been counseled could be disciplined and possibly dismissed depending on the circumstances. However, the employer who is unable to prove the above would be in trouble at the CCMA.In the case of White vs Medpro Pharmaceutica (2000, 10 BALR 1182) the employee failed to meet her targets in nine out of ten months. The CCMA nevertheless found her dismissal to be unfair because the employer had set targets that were not achievable in the CCMA’s view.
- HAS THE EMPLOYEE BEEN GIVEN SUFFICIENT OPPORTUNITY TO ACHIEVE THE STANDARD?
The CCMA will have a problem with the employer where, for example, the employee was appointed on a 6 month probationary basis and is fired because his/her data capture work was not up to standard. The decision to impose a 6 month probation period suggests that the new employee will need more than 2 weeks to get up to speed. - WAS IT THE EMPLOYEE’S FAULT THAT THE PERFORMANCE STANDARD WAS NOT MET?
Dismissal will probably be adjudged to be unfair if the reason for the poor performance was that: - the employer had failed to provide the employee with manufacturing materials
- equipment was faulty
- required training had not been given
- the employer’s product was not in demand or
- some other reason beyond the employee’s control.
- Investigate properly so as to identify where exactly the problem lies
- Set clearly achievable performance targets
- Adjust targets when changed circumstances dictate this
- Give employees a real chance to achieve the desired performance level
- Remove all obstructions to the achievement of the standards.
In UPSWU obo Mogodi vs Ikageng Cleaning Services (2007, 10 BALR 959) the employee was dismissed for poor work performance. However, the charges against the employee were very vague and brought in order to make a scapegoat of the employee. Therefore the employee was unable to prepare a proper defense and the employer failed to convince the arbitrator of her guilt. The employer was ordered to pay the employee 12 months’ remuneration in compensation.
Instead of fabricating charges and blaming the wrong employee employers need to:
Employers should not dismiss under-performers without having attended to the above requirements and without having followed proper procedure. Where the employer is at all unsure as to whether it is within its rights to dismiss a poor performer it should first get advice from a reputable labour law expert.
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