We are often confronted with confusion between poor work performance and negligence, incapacity and even misconduct. This is because of a lack of understanding of the clear distinctions that separate the various conditions. This will result in managers dismissing employees for the wrong reasons and the failure to follow the correct procedures. The consequences could be detrimental to the business, and very expensive.
The Labour Relations Act (LRA) recognises 3 grounds for a fair dismissal being misconduct; incapacity; and operational requirements – a dismissal for incapacity and operational requirements both being “no fault” dismissals. Misconduct is based on the employee’s fault.
What is the difference between misconduct and poor work performance?
We distinguish between misconduct (negligent behaviour) and incapacity (poor work performance).
Misconduct is a “fault” dismissal and is dealt with very differently than the poor work performance process. Misconduct, or unacceptable behaviour, occurs when a rule is broken.
The Code of Good Practice in Chapter 8 of the LRA highlights the following guidelines in cases of dismissal for misconduct:
The employer must prove that the employee has contravened a rule, was aware of or could reasonably be aware of the rule, that the rule was valid and reasonable and consistently applied (substantive fairness). This may take the form of a disciplinary hearing (procedural fairness).
Poor Work Performance
Incapacity relating to poor work performance is, on the other hand, prevalent where an employee has persistently failed to meet certain performance standards despite the employer offering training, guidance, assistance and evaluation. Poor work performance considers whether the job, which the employee is being paid to do, is being done properly. In such a case, the employee would potentially lack the skill, knowledge or competence to meet the employer’s standards. A good example would be a Sales Representative that failed to achieve the agreed monthly sales targets. The performance of the employee is lacking and is normally as a result of circumstances beyond the control of the employee.
In order to fairly dismiss an employee based on poor performance the employer is required to prove that the employee did not meet existing and known performance stands, that the under-performance is serous and investigation, counselling, training, meeting and discussions with the employee is done, before dismissal is even contemplated.
Fairness in poor work performance
There are two aspects of fairness in dealing with incapacity for poor work performance. Firstly, the employee should have failed to meet a performance standard (substantive fairness). Secondly, the employer should have followed a fair procedure in processing an incident of incapacity (procedural fairness).
How is poor work performance dealt with
The first step is to hold a meeting (informal) with the employee to explain to the employee where he is falling short, what standard is not being met, and discuss the matter fully to see if the reason for the poor work performance can be established. The primary procedural requirement is that an employee is given an opportunity to respond to the allegation of incapacity and make representations on possible alternatives to dismissal. It is vitally important that all the proceedings are recorded in detail. At the end of the counseling session, the employee must be warned of the consequences of failure to improve. Bear in mind that the aim of the counseling session is not to punish the employee, but to assist him to recognize and overcome the problem.
If the matter comes to dismissal, the Code of Good Practice in Chapter 8 of the LRA highlights the following guidelines for poor work performance (Substantive fairness)
Any person determining whether a dismissal for poor work performance is unfair should consider:
(a) whether or not the employee failed to meet a performance standard: and
(b) if the employee did not meet a required performance standard, whether or not:
(i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;
(ii) the employee was given a fair opportunity to meet the required performance standard; and
(iii) dismissal was an appropriate sanction for not meeting the required performance standard.
An employee who is dismissed may refer a dispute to the CCMA or a Bargaining Council with jurisdiction within 30 days of the date of the employee’s dismissal.
ABOUT THE AUTHOR
Liesl van der Merwe obtained her B.Com Honours degree in Industrial Relations from the North-West University in 2010. She joined SEESA Labour as a legal advisor in 2016.