What the law says about poor performance in the workplace

IMPLEMENTING operating efficiencies in the workplace inevitably results in cost-cutting measures that include keeping staffing levels as low as possible. This increases focus on maximising the productivity of every employee, which in turn puts employee performance in the spotlight. There are many theories on how employee performance can be maximised. It is true that promoting extra-mile employee performance is a multi-faceted process. Training and development are important, as are motivation, mentoring and encouragement. Many organisations incorporate performance management systems, of varying degrees or complexity, to help generate top-notch team and individual employee performance.

Our law has much to say about the management of employee performance, especially when it is clear that the work performance is persistently poor and, therefore, cannot be tolerated indefinitely. One would like to believe that most of the time, these softer-skill interventions do the trick and lead to enhanced, sustained improvements in performance. But what if they don’t? Like it or not, traditional performance management interventions and processes often fail, regardless of how well intended they may have been. It is at this point that employers, on occasion, realise that the poor performance can no longer be condoned. Here again, our law has a lot to say about poor performance, which increases the prospect of dismissal.

The starting point in law is to determine if the employee can be held blameworthy for the poor performance because sometimes they can, but other times, they cannot be. Poor performance, in our law, is addressed as either a “misconduct” or “incapacity” issue. Identifying which of these two categories the poor performance falls into upfront is critical, as it determines which procedure must be followed. To begin with, poor performance which was avoidable amounts to an act of misconduct which can be addressed by way of a disciplinary procedure. The reason for this is that all employees have a duty of care. If it can be proved that the employee had the capacity to meet the minimum performance requirement and had the capacity to avoid the poor performance, they can be held blameworthy for the poor performance and disciplined.

Of course, that is not to say that dismissal would be the appropriate sanction, but it may be if the gravity of the poor performance justifies it after other factors have been considered. By and large, blameworthy poor performance discipline cases involve allegations of employee negligence. Negligence is the failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person. If it can be proved, on a balance of probabilities, that the employee did not meet this standard while they were capable of doing so, the employee could be found guilty of such negligence.

On the other hand, there may be no blameworthiness whatsoever on the part of the employee with regard to their poor performance. The poor performance may be the result of an employee simply not having the capacity to meet the minimum performance requirements. The employee may be vigilant and motivated to meet the performance requirements, but simply incapable of doing so. It follows that an employee cannot be held blameworthy for poor performance owing to their inability to meet performance requirements. For this reason, this is not misconduct-related poor performance, but rather a case of “incapacity”.

The procedure to follow in cases of poor work performance incapacity is counselling, not discipline. This counselling procedure is outlined in section 9, Schedule 8, of the Labour Relations Act. In Standard Bank of SA v CCMA (2008) 4 BLLR 356 (LC), the Labour Court reiterated the Labour Relations Act Schedule 8 requirements and concluded that employers before dismissing an employee, for (poor work performance) incapacity, must adopt the following four-stage inquiry:

  • Is the employee unable to perform his or her work?
  • If not, to what extent is the employee capable of working?
  • Can the employee’s work circumstances be adapted?
  • If not, is there alternative work available?

Put differently, employees have rights in this process. The employer must provide the employee with reasonable performance objectives, which have been clearly communicated to them. Furthermore, the employer must provide the employee with the training, guidance, support and counselling that could be reasonably expected of them. Thereafter, the employee must be given reasonable time within which to close the performance gap with the understanding that should they not do so, they will render themselves potentially liable for dismissal on grounds of their persistent poor performance. Even if an employee is held to have failed in meeting their minimum performance requirements, the employer is required to establish if there are any other alternative employment opportunities within the company that match the employee’s skill set, even if it means a demotion.

If so, the employee must be offered that position with the understanding that the employee is at liberty to accept or decline the offer of alternative employment. Should they decline the offer, the employer would be entitled to dismiss the employee on grounds of poor performance if section 9 of Schedule 8 of the Labour Relations Act has been complied with. Finally, when considering the fairness of the dismissal of probationary employees, less compelling reasons for dismissal on grounds of poor performance are required when compared to the post-probation period counselling procedure.

Tony Healy is a labour law consultant expert at Tony Healy & Associates.

Visit www.tonyhealy.co.za. Call 0861 115 375 or email [email protected]

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