Many employers have faced circumstances where potential employees exceed expectations in interview stages and seem to be the perfect fit for the position, only for those employers to be disillusioned soon after employment. For such an employer, it later becomes evident that the employee does not have the ability to perform the duties to the required standard. Some employees only require extra training and guidance in order to achieve the set standard, but unfortunately other employees will not be able to achieve the standard despite proper training and guidance provided.
As a result, employers are obliged to embark on poor work performance procedures in order to attempt to resolve the problem. In previous articles the Code of Good Practice, Schedule 8 played a very important role by providing guidelines to terminate an employee’s services.
The Code of Good Practice: Dismissal (“the Code”), urges any person who has to consider whether a dismissal for poor work performance is unfair, to take into consideration the following:
- “whether or not the employee failed to meet a performance standard; and
- if the employee did not meet a required performance standard whether or not-
- the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;
- the employee was given a fair opportunity to meet the required performance standard; and
- dismissal was an appropriate sanction for not meeting the required performance standard.”
Normally employees are initially employed on a probation period. Schedule 8 of the Code prescribes guidelines as to how such employees, who are still in their probation period, should be dealt with:
(1) (a) An employer may require a newly-hired employee to serve a period of probation before the appointment of the employee is confirmed.
(b) The purpose of the probation is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment.
(c) Probation should not be used for purposes not contemplated by this Code to deprive employees of the status of permanent employment. For example, a practice of dismissing employees who complete their probation periods and replacing them with newly-hired employees, is not consistent with the purpose of probation and constitutes an unfair labour practice.
(d) The period of probation should be determined in advance and be of reasonable duration. The length of the probationary period should be determined with reference to the nature of the job and the time it takes to determine the employee’s suitability for continued employment.
(e) During the probationary period, the employee’s performance should be assessed. An employer should give an employee reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render a satisfactory service.
(f) If the employer determines that the employee’s performance is below standard, the employer should advise the employee of any aspects in which the employer considers the employee to be failing to meet the required performance standards. If the employer believes that the employee is incompetent, the employer should advise the employee of the respects in which the employee is not competent. The employer may either extend the probationary period or dismiss the employee after complying with sub items (g) or (h), as the case may be.
(g) The period of probation may only be extended for a reason that relates to the purpose of probation. The period of extension should not be disproportionate to the legitimate purpose that the employer seeks to achieve.
(h) An employer may only decide to dismiss an employee or extend the probationary period after the employer has invited the employee to make representations and has considered any representations made. A trade union representative or fellow employee may make the representations on behalf of the employee.
(i) If the employer decides to dismiss the employee or to extend the probationary period, the employer should advise the employee of his or her rights to refer the matter to a council having jurisdiction, or to the Commission.
(j) Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reason for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period.
(2) After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has-
(a) given the employee appropriate evaluation, instruction, training, guidance or counselling; and
(b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.
(3) The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.
(4) In the process, the employee should have the right to be heard and to be assisted by a trade union representative or a fellow employee.
In Pernod Ricard SA (Pty) Ltd v CCMA & others (2011) 32 ILJ 119 (LC) it was found that the Commissioner correctly set out the law pertaining to poor work performance. The employer is entitled to set standards and hold the employees accountable for failing to achieve the set standards. It was also stated that the employer must take into account prevailing circumstances such as personal-, market-, economic- and other relevant considerations when determining if a dismissal is fair or not.
In the event that the employee does not perform in accordance with to the required standard, it is expected from the employer to discuss the shortcomings with the employee and point out that he or she should improve. It should also be communicated clearly to the employee that if his or her performance does not improve that certain consequences will follow. The employer has to explain the detail of such consequences. Naturally, the employee should be afforded the opportunity to answer to the allegations against him or her – this is supported in the matter of Gostelow v Datakor Holdings (Pty) Ltd t/a Corporate Copilith (1993) 14 ILJ 171 (IC).
It is clear that there is a distinction between an employee not having the ability to perform the duties required and an employee not performing the duties due to misconduct. Misconduct is dealt with differently. Poor performance should be attended to by utilising the Code as set out above and should always conform to procedural fairness. The employer has to ensure that all the employees are aware of the set standards in the workplace and that such standards are at all times reasonable and achievable.
Douw Breed (B.Com LLB) is a director at Barnard Inc. Attorneys
Barnard Incorporated is a firm of attorneys situated in Centurion, Pretoria.