The employee, in turn, claimed that the target was unachievable. The employee did not reach his targets. The employee was summoned to a disciplinary hearing and dismissed for poor work performance. © 2020 Werksmans Attorneys, All rights reserved. The employer is expected to provide the employee with resources to attain set targets. The first thing area you should investigate is whether poor performance is due to the employee not having the right tools, skills, or instructions. by Tony Healy | May 16, 2019 | General, Jobs, What the law says about poor performance in the workplace. Nevertheless, the employer proceeded to issue several threats complaining about the employee’s failure to enrol sufficient students for the Boksburg campus. Visit www.tonyhealy.co.za. Many cases of poor performance are unintentional. In deciding the matter, the LAC noted that the employer has the obligation to prove that the employee’s dismissal was substantively and procedurally fair. What is acceptable performance? Automotive aftermarket shake-up – The Competition Commission’s final Automotive Aftermarket Guidelines, COVID-19 Temporary Employer / Employee Relief Scheme (“TERS”) audit pack, Considerations for the digital economy – Insight from UNCTAD. Furthermore, for Bangkok, only 6,693 out of 22,173 criminal cases (30%) involved arrests by police officers. The commissioner found that her work amounted to poor performance but not gross negligence. During this process, the employer should identify all of the key evidence to support the allegation. If you feel that your performance evaluation was conducted in a discriminatory manner, you should speak with an discrimination attorney who can advise you of your legal rights and any applicable laws. A poor performance is usually something you see in amateur theatre – not in the workplace! The employee’s employment contract contained a clause that stipulated that performance goals determined by the employer must be periodically evaluated and that continued non-attainment of performance goals may result in the termination of employment. Where it is required, an employer should provide employees with the necessary evaluation, instruction, training, guidance or counselling to render satisfactory performance. You may face performance issues by your employer if your work is not up to scratch. How to Manage Poor Performance. For example, in performance categories that includes gray areas, such as whether an employee has innovative ideas, if an older worker scores low it could be viewed as age bias, leading to a possible disparate impact claim. In my opinion, the chairperson should have the potency to understand the reasons for poor productivity as well as the ability to reframe the necessary tactics to deal with the poor performance at work. ... but only according to employment law requirements. While the Acas code of practice on disciplinary and grievance procedures requires employers to give employees a series of warnings before they dismiss an employee for poor performance, it is well established from case law that it may be lawful to dismiss an employee for a one-off act if it constitutes a very serious mistake. Author(s): Innes Clark. The employer appealed to the Labour Appeal Court (“LAC”). IMPLEMENTING operating efficiencies in the workplace inevitably results in cost-cutting measures that include keeping staffing levels as low as possible. This case highlights a dismissal could be ruled unfair if poor performance is mistaken for misconduct. Employment law- Poor performance and Performance Improvement Plans What is poor performance at work? Training and development are important, as are motivation, mentoring and encouragement. 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. 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. This is not the whole picture though. What does the law say? The employee then referred an unfair dismissal dispute to the CCMA. I said that good planning and effective communication are important. If not, to what extent is the employee capable of working? COMMENT; How poor performance can quickly become a legal issue for businesses. 2. This is not so easy when we look … A Case of Missed Sales Targets. ... A Practical Guide To Unfair Dismissal Law In South Africa by Rossouw and Conradie, Butterworths … 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. The employee was employed as a casual employee in a small business for some 5 years. Ineffective work performance by police officials could negatively influence ... reported that Bangkok had the highest number of criminal cases in Thailand. In South Africa the law differentiates between dismissal for poor performance for an ordinary employee and that of a senior manager or executive. The Commissioner found in favour of the employer, upholding the employee’s dismissal. The poor performance may be the result of an employee simply not having the capacity to meet the minimum performance requirements. Poor work performance or failure by the employee to reach and maintain the employer's work performance standards in terms of quantity and quality of output is an ever increasing problem. Your job as a manager is to attempt to understand the root cause of poor performance. Labour law - Dismissal - Poor performance - Whether person may be dismissed for incompetence after disciplinary hearing - Dismissal substantively fair but procedurally unfair. POOR PERFORMANCE The Labour Relations Act, recognises three types of dismissal, namely: - Misconduct - Operational requirements (retrenchment) - Incapacity (ill health, injury, poor performance) Schedule 8 of the Labour Relations Act lays down the following Code of Good Practice when dealing with poor performance;- “9. If poor performance persists after a reasonable period of time, a disciplinary enquiry for poor work performance must be instituted. Many employers fire poor performers prematurely while others wait too long before taking strong action. Identifying which of these two categories the poor performance falls into upfront is critical, as it determines which procedure must be followed. As a manager, it’s your job to provide your team with the right tools and guidance. In deciding whether this obligation had been met regard must be had to the applicable provisions of the Labour Relations Act 66 of 1995 (“LRA”) as well as the Code of Good Practice: Dismissal (“Dismissal”). If they were suspended, then confirm they should return to work. The LC noted that it was incumbent on the employer to prove that the dismissal was substantively and procedurally fair. However, telling the HRM to conduct recruitment interviews because the HR Officer is in hospital would, in most cases, be both legal and reasonable. Word Index & Definitions; Case Law; Bulletin; Questions & Answers ; Templates & Resources; Our Experts; See all chapters 1300 782 911 Home How to counsel an employee for poor performance. This is crucial because it may be the case that the poor performance has arisen as a consequence of th… The Damelin case illustrates that employers should not be overhasty in categorising matters of incapacity (poor work performance) as misconduct. Legal advice for employers considering dismissing an employee for unacceptable performance. Banking on a resignation with immediate effect? This counselling procedure is outlined in section 9, Schedule 8, of the Labour Relations Act. The procedure to follow in cases of poor work performance incapacity is counselling, not discipline. Negligence is the failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person. 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. Your employee wasn’t properly prepared . It distinguishes between employees who can reasonably be expected to bring their performance up to standard (cases of poor performance) and employees who are not able to do so, due to ill health or injury. It also means that, unless employers improve their understanding and implementation of the law, more and more senior employees will be taking them to the CCMA and winning huge compensation awards. She was terminated for alleged poor performance but received no warnings. ... your employer must carry out any necessary investigations to establish the … 5. Terminating an employee with cause for poor performance requires diligence from the employer. The relevant provisions of the Code include the following: “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.”. POOR EMPLOYEE WORK PERFORMANCE- A CASE STUDY - CAMBRIDGE POLICE STATION NOMBUSO ANTONIA HLENGANE- MBA GRADUATE OF MANAGEMENT COLLEGE OF SOUTHERN AFRICA MANCOSA PROF M.S BAYAT ADJUNCT PROFESSOR- UNIVERSITY OF FORT HARE AND DIRECTOR– MANAGEMENT COLLEGE OF SOUTHERN AFRICA-MANCOSA Abstract Understanding the impact of employee poor performance … It is implicit in all employment contracts that the employee undertakes to perform according to the reasonable, lawful … Many managers – if not most – confuse poor performance with negligence, incapacity and … What is poor work performance? I am left in no doubt, from the evidence presented in the arbitration, that the guidelines in cases of dismissal for poor work performance as set out in Schedule 8 to the Labour Relations Act 1995, were more than adequately observed by the Applicant in its dealings with Robinson and in the result, and when regard is had to the principle now well-established in a line of cases in the Labour Appeal Court, … A thorough process should also identify the reasons for the poor performance. This case throws doubt on the belief that a senior executive can, in all circumstances, be dismissed for a first poor performance offence. An employer should carry out adequate investigations to ascertain the facts to see whether an allegation of poor performance has merit. In such a case the employee would potentially lack the skills, knowledge or competencies to meet the employer’s standards. Here again, our law has a lot to say about poor performance, which increases the prospect of dismissal. Many organisations incorporate performance management systems, of varying degrees or complexity, to help generate top-notch team and individual employee performance. INVESTIGATION THAT MAY LEAD TO DISMISSAL 6. THE TEST – LABOUR RELATIONS ACT 7. He commenced his employment on 3 January 2011. She demonstrated a deep understanding of the law and applied it with vim and vigour. They were given letters warning of poor work performance, followed a month later by a final ultimatum giving them the opportunity to make written representations with reasons for failing to meet their targets. [23] Item 9 reads: ‘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 … The employer is a company operating in the tertiary education sector and has a number of campuses throughout the Republic of South Africa. Tony Healy is a labour law consultant expert at Tony Healy & Associates. We focus on people. This was a case which dealt with a dispute relating to the management of poor work performance. A recent verdict in a wrongful termination case shows, however, that given the proper evidence, victims of age discrimination can succeed in court. In the matter of Damelin (Pty) Ltd v Solidarity obo Parkinson and others (2017) 26 LAC 8.1.1 the Court had to deal with these issues. In the Brooklyn case, the employer apparently concluded that ADHD was too big a liability, even though there was plenty of evidence that the worker could do the job. Employment advice for employers. This case highlights the importance of an employer setting reasonable and achievable deliverables as well as the obligations placed on an employer to assist an employee in reaching established targets. 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. The letter cautioned that if the employee’s performance did not improve, a disciplinary hearing would be convened against him and his leave would be cancelled. An employee cannot be dismissed for poor work performance in circumstances where the failure to meet such targets arose from extraneous factors outside of his control, even during probation. ... there is a serious lesson in this case: Tread very carefully when considering any adverse action against an employee who’s recently exercised his or her FMLA privileges. This might explain why some employers tend to confuse poor performance with negligence, incapacity or misconduct. The Labour Relations Act (LRA) provides that "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 - Mr Steve W Parkinson (“employee”) was employed as the general manager of Damelin’s (“employer”) Boksburg campus. But serious errors are not an automatic reason to dismiss. The Employment Rights Act 1996 specifies five potentially fair reasons for dismissal. The targets were unrealistic in part due to unrealistic calculations and in part due to a narrowing of the ‘catchment area’ for students arising out of the nearby opening of a campus in Benoni. 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 employer must also be able to show that the performance standards or sales targets are reasonably achievable. 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. Senior deputy president Hamberger from the Fair Work Commission has ordered domestic postal freight company Startrack Express to pay one of its drivers $17,500 in compensation after it was found that the company had unfairly dismissed an employee of eight years. This means that the poor performance wasn’t intentional, and that the employee could improve. This counselling procedure is outlined in section 9, Schedule 8, of the Labour Relations Act. There are many theories on how employee performance can be maximised. A group of sales representatives failed to meet their (newly-introduced) sales performance targets. quality. Poor performance at work is one of the main causes why a firm goes down within a few years of establishment. If this plan … In running a venture, staff performance management is an indispensable skill. Poor Performance Procedures Poor Work Performance falls under the broad heading of Incapacity. The employee sought to review the decision before Labour Court (“LC”). Poor Performance. The LC reviewed the decision of the Commissioner (ie found the Employee’s dismissal was unfair). This might include examples of specific work, 360-degree reviews, emails from other members of the team or other … Use Black Friday to kickstart a new career, Everything you need to know about SA’s unemployment rate, EMPLOYERS ARE NOT PROTECTED BY THE CORPORATE VEIL. The procedure only applies to employees who can reasonably be expected to bring their performance up to standard. An investigation may include monitoring, reviewing appraisals and/or reviewing stats with other seniors. Poor performance is likely to come under the heading of ‘conduct’ or ‘capability’. Like it or not, traditional performance management interventions and processes often fail, regardless of how well intended they may have been. Your lack of performance at work, or “capability” as it it known under employment legislation, is something that can trigger a dismissal. 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: Put differently, employees have rights in this process. Part of the solution to this nagging problem is for employers to understand on what basis the law judges … Despite the settled rule that workers cannot be fired based solely on their age, age discrimination can be difficult to prove because other factors, such as poor job performance, are often present. 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. Furthermore, setting targets does not necessarily simplify matters. It can be difficult dealing with an employee who is underperforming. Insubordination is not the same as poor work performance. For this reason, this is not misconduct-related poor performance, but rather a case of “incapacity”. 2. Most employees work on an at-will basis. 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. One way to establish poor workmanship is the use of sub-standard or inferior grade materials or processes during the performance of work under the contract. There are exceptions in the case of senior employees or managers and where the degree of skill is so high that one slip in performance has disastrous consequences for the employer. Chapter VIII of the LRA, along with an accompanying code of practice, has made a large contribution to systematising and clarifying this important area of South African employment law. POOR WORK PERFORMANCE by MOKUMO MF Mini-Dissertation submitted in partial fulfilment for the requirement of the degree of Masters of Law in Labour Law In the Faculty of Management and Law School of Law At UNIVERSITY OF LIMPOPO (Turfloop Campus) SUPERVISOR: TC MALOKA 2012. a ... FOR POOR WORK PERFORMANCE I. The employee was summoned to a disciplinary hearing and dismissed for poor work performance. 06-CV-3230, E.D. DEALING WITH POOR WORK PERFORMANCE 4. WHO SHOULD BE INVOLVED ? If not, is there alternative work available. … •2nd: The belief under 1st above emerges from a fair process; i.e. In some cases, employers will use this as a bogus reason to try to dismiss you. In this case, Byrch, hereinafter referred to … Pursuant to section 98 (2) (a) of the Employment Rights Act 1996, capability (by way of poor performance) is potentially a fair reason for dismissal. A lawyer can also advise you of whether your rights were violated and what remedies are available to you. Each party to the contract is bound to perform promises according to the stipulated terms. It is true that promoting extra-mile employee performance is a multi-faceted process. 8.3 Negligence or lack of ability When dealing with problems of poor performance and sub-standard work, we can often see a distinction between negligence and lack of ability. The background to this case, as described in the judgment, was that “the respondent employees failed to achieve the performance targets between September 2016 and January 2017. There are exceptions in the case of senior employees or managers and where the degree of skill is so high that one slip in performance has disastrous consequences for the employer. POOR WORK PERFORMANCE: WHERE DOES IT FIT IN ? Call 0861 115 375 or email info@tonyhealy.co.za. Here are some common causes of poor work performance: 1. Furthermore, the employer must provide the employee with the training, guidance, support and counselling that could be reasonably expected of them. Employment Law. Poor performance, in our law, is addressed as either a “misconduct” or “incapacity” issue. Is the employee unable to perform his or her work? 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. However, an employer seeking to dismiss an employee as a result of poor performance will be required to show that they made reasonable efforts to work with the employee before making the decision to dismiss. It is at this point that employers, on occasion, realise that the poor performance can no longer be condoned. On 25 January 2012 the employer issued a letter to the employee registering its dissatisfaction. In conclusion, therefore, while an employer should, as a general rule, in cases of poor work performance appraise or warn the employee before a dismissal ensues. The law is fairly clear: An employee can be dismissed where their performance does not meet the reasonable expectations of the employer. MEANING OF POOR WORK PERFORMANCE 3. Incapacity relating to poor performance is prevalent where an employee has persistently failed to meet certain performance standards despite the employer offering training, guidance, assistance and evaluation. If evidence justifies further action then you will need to arrange a disciplinary hearing. Such a warning was not given in this case. The first case, Nicholls v Rockwell Automation Ltd, considered whether an Employment Tribunal was entitled to closely examine the scoring in a … In conclusion, therefore, while an employer should, as a general rule, in cases of poor work performance appraise or warn the employee before a dismissal ensues. A case of missed sales targets “…the employer has a duty to investigate all possible alternatives short of dismissal, and this duty accords with the onus of proving the fairness of the dismissal” (extract from judgment below) Sometimes an employee will be unaware they are underperforming and won’t change unless they are told otherwise. That is, poor work performance relates to how badly the employee has performed work or missed deadlines. Employees need to know what constitutes an acceptable level of performance, below which their organisation will consider their performance is wanting. 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. The courts and tribunals are less likely to … I suggest that you make an appointment with specialist in labour law to discuss your situation and to obtain advice. The employee was given a target to enrol a specified number of first year students for the year 2012. Evidence of the employee’s poor performance (such as examples of inadequate work, or complaints by customers or colleagues) should be retained and shared with the employee at each stage of the process. ... Whatever the legal pitfall, a manager who has a basic understanding of the law can avoid this type of trap. Date: 30 July 2012. Pagel sued for FMLA interference and retaliation. Timeliness is one thing, and if you conduct a performance appraisal for one employee, conduct appraisals for everybody. An evaluation process can also be overly arbitrary, in that it’s too subjective or able to be manipulated without clear justification. Updates Jan 29, 2014. Click on the link if you’ like to more information on Werksmans expertise in the Labour & Employment sector. ... this assumes that there is genuinely poor performance. If the employer has attempted all reasonable possible alternatives, dismissal will be accepted as the only remaining option. The concept of unfair dismissal is a right created by statute and contained in the LRA. In Palace Engineering (Pty) Ltd v Ngcobo and Others 6 BLLR 557 (LAC), the Labour Appeal Court (LAC) considered the fairness of a dismissal of a senior manager for poor work performance. Key Performance Indicators (KPIs) for Legal Departments worth considering include: Total cost of services (inside and outside) Legal spend as percentage of revenue; Budget-to-actual total spend comparison (e.g., percent handled within budget) Outside expense versus in-house; In-house lawyers versus revenue; Cost per matter; Cost per lawyer; Spend after implementing ebilling compared to … If there is no case to answer, then confirm to the employee that your investigation has finished and that no further action will be taken. 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. How to counsel an employee for poor performance. But what if they don’t? Performance appraisals can make or break your defense to a wrongful termination claim. Communication and planning. Performance, in law, act of doing that which is required by a contract.The effect of successful performance is to discharge the person bound to do the act from any future contractual liability. The most common claim arising from the management of poor performance is an unfair dismissal claim from an employee with more than one year's service who is dismissed on grounds of incapability. Managing poor performance is rarely simple or swift, particularly for those employers with detailed capability procedures in place. It was common cause that there were some performance problems but instead of conceding these and making efforts to improve and align her work performance to the company’s expectations the employee was suspicious and accused the employer of bad faith. What is Poor Work Performance? In this case, the employee was employed as the chief operations officer in terms of a three-year contract. If you need to terminate an employee for poor performance, you'll need to create a simple termination letter that protects you as an employer.Since disgruntled former employees can and often do use anything you put in writing to take legal action, keep … This increases focus on maximising the productivity of every employee, which in turn puts employee performance in the spotlight. By and large, blameworthy poor performance discipline cases involve allegations of employee negligence. Can the employee’s work circumstances be adapted? It follows that an employee cannot be held blameworthy for poor performance owing to their inability to meet performance requirements. Why are performance management processes important? Performance is all about how the employee does the job – i.e. Description Information sheet by the CCMA on Poor Work Performance - South African labour laws recognise that an employer may require work performance of an acceptable standard, and that employees should be protected against unfair treatment. The employee sought to review the decision before Labour Court (“LC”). Avoid conducting performance appraisals just to correct poor performance -- performance appraisals also should recognize high-performing employees. Misconduct is all about behavior or conduct of the … The employer must provide the employee with reasonable performance objectives, which have been clearly communicated to them. Owen Gough . The procedures for handling poor performance are completely different from the procedures for handling misconduct. The Employee queried the above target on the basis that it was based on unrealistic numbers and that by implication the targets were unrealistic / unachievable. We recently obtained a judgment from the Industrial Court … (EEOC v. Starrett City Inc., No. A Case of Missed Sales Targets Go Back Author: Webbers Attorneys Date: ... “Any person determining whether a dismissal for poor work performance is unfair should consider - Whether or not the employee failed to meet a performance standard; and ... Our employment laws and labour courts come down heavily on any unfair discrimination in the workplace, but it’s not … Poor work performance is often a symptom of a larger problem; it is not a core problem in itself. opportunity. This it did not do. 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