Our labour laws recognise that an employer may require work performance of an acceptable standard, and that employees should be protected against unfair treatment. Work places differ and require different guidelines.

  1. Standard setting 

An employer may set performance standards that an employee is required to meet.  These standards need to be reasonable and relevant to the workspace and culture. The employer may develop numerous work standards depending on the nature of the employment. The employees must be aware of the standard/s expected of them or reasonably expected to know. The standard/s should be clearly communicated in writing, verbally in terms of the monthly or quarterly targets or that have become known through practice and custom. The employer will have to take into account sales targets, budget deadlines, etc. when developing a standard.    

  • Assessing employee performance  

The employee’s work performance will be graded against the set of known standards. If the employee falls short of the standard, relative to seniority, the employer should —

  • inform the employee that his/her work performance does not meet the required standards;
  • discuss possible causes of the poor performance and rectify any workplace based causes;
  • formulate a way forward to improve performance, including further training, guidance and counselling sessions; and
  • set realistic time periods for the achievement of the performance standard(s). 

The employee should be given a reasonable allotment of time to improve their performance and a feedback programme with the supervisor should be developed for that period. The level of performance achieved during the shorter periods under review may be recorded for future reference.

  • When further action is required

Should the performance remain poor or subpar after such a reasonable time, the employer must communicate the below to the employee—

  • that the expected standard has still not been met;
  • the seriousness of the matter and that a formal poor performance inquiry will be held, if relevant, that could potentially lead to the employee’s dismissal;  
  • the employee will be given an opportunity to respond to the allegations of poor performance;
  • a colleague or union member may assist the employee against the allegations made;
  • the employee may call witnesses or bring other proof in support of his or her case; and
  • an interpreter is available if needed and where possible.

The purpose of the poor performance inquiry is to determine 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. Whether the employee was aware or could reasonably be expected to have been aware, or the required performance standard; and the employee was given a fair opportunity to meet the required performance standard; and alternatives short of dismissal.  

An employer is encouraged to seek alternatives to dismissal such changing aspects of the job, another position or assigning a mentor. Employers and employees may also mutually request that the CCMA or a Bargaining Council to appoint an arbitrator to conduct an inquiry into allegations of poor work performance in terms of Section 188A of the Labour Relations Act. The outcome of which is final and binding and only reviewable by the Labour Court.

This inquiry eliminates the duplication of proceedings with an internal inquiry followed by a referral to the CCMA or Bargaining Council for conciliation or arbitration where the chairperson’s find was challenged by the employee. The employer must pay a prescribed fee and employee must consent in writing to such enquiry.

Probationary employees   

A poor performing employee must be provided with evaluation, instruction, training, guidance or counselling to assist him/her in improving his/her performance. The employer can dismiss an employee who has once they have been called to state their side of things and the employer should make a decision whether to dismiss or extend the probationary period. In any dispute on the fairness of the termination of probationary employee, the person making the decision to dismiss must accept reasons for dismissal that are less compelling than terminations effected after the probationary period. The burden of substantive fairness is lower for the employer on the grounds that there is incompatibility or failure to meet the work standards. The fair procedure must still be followed.

Incapacity procedure for poor performance

This procedure applies to all employees, other than probationary employees who are alleged not to be performing to standard. There is a difference between employees reasonably expected to bringing their performance to par and employees unable to do so due to ill health/injury. Therefore it is only applicable to those reasonably be expected to bring their performance up to standard. It is inapplicable where employee has allegedly breached a rule of the employer regulating conduct, in which case the disciplinary procedure will apply.

The aims of the procedure are:

  • help employees to overcome poor performance and meet the standard/s;
  • promote efficient and effective performance by employees;
  • enable the employer to function efficiently and effectively; and
  • Help the employer to apply corrective action where appropriate.

The employer decides when the procedure is applicable.

Procedure for employees in respect of Poor Performance

If the employer is of the view that an employee is not performing in accordance with the job that the employee has been employed to do, the employer must give written reasons why it is necessary to initiate this procedure; after serving the written reasons, meet with the employee or employee’s trade union representative and/or a fellow employee.

In the meeting the employer must:

  • explain the requirements, grade, skills and nature of the job;
  • evaluate the employee’s performance in relation to the requirements of the job;
  • indicate reasons for perceived poor performance;
  • hear the employee or the employee’s representative on: whether the employee has performed in accordance with the requirements of the job; and
  • where employee agrees she or he has not performed in accordance with the requirements of the job, give reasons.

After hearing the employee’s standpoint, the employer must, if necessary:

  • develop and initiate a formal programme of counselling and instruction to enable the employee to meet the standard
  • assessing with the employee the time that it would take for an employee to overcome the poor work performance;
  • on the basis of the assessment, establishing realistic time frames within which the employer will expect the employee to have met the required performance standards; and
  • identify and provide appropriate training for the employee to reach the required standard of performance, and
  • establish ways to address any factors that affect the employee’s performance that lie beyond the control of the employee.

Where the employee’s performance is not remedied within the time period given, the employer must give the employee a written report on the outcome of the procedure; and consult again with the employee to explain the outcome of the procedure, and on measures to address any problems indicated in the report. The employer should keep a record of all counselling sessions.

After consulting with the employee, the employer must consider whether:

  • to continue to give the employee the appropriate guidance, instruction and counselling and establish a further, appropriate period for the employee to meet the required standard of performance,
  • to mentor the employee, or
  • to convene a poor performance hearing to consider what action should be taken, which action may include placing the employee in a more appropriate job or dismissing the employee.

Poor Performance Hearing

A hearing for poor performance must be held if the appropriate manager is of the opinion that action stronger than a final written notice may be warranted. The manager must give the employee not less than three (3) working days’ notice of the time and date of the hearing, and details of the performance standard the employee is alleged not to have met.

The following persons may be present at such a hearing:

  • chairperson;
  • representative of the employer or his/her nominee, providing evidence against the employee who has not met the required performance standard;
  • employee in question;
  • employee’s representative;
  • any witnesses the employer or the employee wishes to call; and
  • interpreter, if the employee requires one.

At the conclusion of the hearing the chairperson must decide whether the employee is able to meet the required performance standard or not. If the chairperson finds that the employee is not able to meet the required performance standard the chairperson may ask both the employee and the employee’s representative and the employer to make submissions on the appropriate outcome of the hearing. The Chairperson must decide on the appropriate action and inform the employee accordingly.

If an employee is fell short of the standard/s, the chairperson must consider whether there is any action that could remedy the situation other than dismissal. Where there isn’t, the employee may be dismissed with notice, in terms of the notice periods prescribed in the employee’s conditions of employment. The failure of the employee charged or the employee’s representative to attend the hearing shall not invalidate the proceedings, except if good cause can be shown for not attending.

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