Poor Performance

Counseling Procedure – Incapacity - Poor Performance

This procedure has as its base the procedure published by the Commission for Conciliation, Mediation and Arbitration. We have taken the procedure and used it as a base, modifying or re-vamping where we thought necessary in order to make it more user friendly or to clarify certain aspects. 

The final product follows below. It is our view that if employers follow this procedure when addressing matters of poor performance, they will achieve a speedy and fair resolution to the problem.  The success or failure of this procedure is dependant on all meetings, events, evaluations, communications and in fact every aspect of the procedure must be recorded in writing. 

Failure to record every aspect in writing will result in failure of the procedure and failure of any defense put forward by the employer should the employee decide to challenge a perceived unfair dismissal at the CCMA.

1.  Application :

1.1 The procedure applies to all employees who can reasonably be expected to bring their performance up to the required standard. This procedures does not apply to  probationary employees – in such cases a less formal procedure is followed.   

1.2 This procedure is to be applied in cases of incapacity – poor performance only. 

1.3 This procedure does not apply to employees who have failed to reach a required  performance standard due to ill health or injury. 

1.4 Poor performance is not to be addressed as a disciplinary matter. Disciplinary procedures apply only to instances of misconduct.  Poor Performance is not misconduct.

Misconduct is where a rule or standard set by the employer has been broken.  Poor performance (excluding employees on probation and excluding ill health or injury)   is where the employee has not broken a rule or standard, but rather has failed to achieve the required standard. 

1.5 Poor performance may be described as an employee who is not performing to the  standards required by the employer, and who can be reasonably expected to attain the  required standard, provided that assistance in the form of counseling, training and guidance is provided to the employee. 

1.6 This procedure does not apply to employees who have failed to reach the required standard because of ill health or injury. In such cases it is the ill health or injury that must be addressed and not the poor performance. 

1.7 This procedure must be read in conjunction with the Code of Good Practice – Dismissal  in Schedule 8 of the Labour Relations Act , no 66 of 1995.

2.  Dismissal for Poor Performance 

2.1 A dismissal for poor performance is only justified if the employee was counseled, offered assistance, given a reasonable time to improve, and despite having been  made aware of the possible consequences of such failure to improve, did not do so.

An employer is entitled to expect employees to meet acceptable levels of performance. The standards or levels of performance must be relevant to the workplace, must be reasonable and attainable, and must be made known to the employee by the employer. 

Employees have the right to expect that they will be dealt with fairly and if the employee is not meeting the employer's standards, that this fact will be brought to the attention of the employee by the employer. 

The employer must, depending on the nature of the job, give the employee feedback, evaluation, training or guidance on how to meet the expected level of performance. The employee should also be afforded a reasonable time period within which to meet the required standard. 

If, despite counseling, training, guidance and instruction, the employee is still unable to meet the required performance standard within the reasonable time period set by the employer, then the employer may dismiss the employee for poor performance subject to the employer following a fair procedure.

3. Objectives of the procedure.  

3.1 The objectives of the procedure are to : 

3.1.1 assist employees to overcome poor performance and to perform to the standard  expected of them ; 

3.1.2 promote efficient and effective performance by employees ; 

3.1.3 enable the employer to function efficiently and effectively ; and 

3.1.4 assist the employer to apply corrective action where appropriate.

4.  Responsibility for application of the procedure: 

4.1 It is the responsibility of the employer : 

4.1.2 to constantly monitor the performance of all employees ;  

4.1.2 to properly identify cases of poor performance promptly: 

4.1.3 to decide when it is necessary to apply this procedure ; and upon so deciding

4.1.4 to promptly address  the issue of poor performance with the employee in accordance  with this procedure.

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

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Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

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Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

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Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

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