What does dismissal for poor work performance mean?
Most employers, when faced with an employee who has been underperforming confuse poor performance with negligence, incapacity and even misconduct. This is because the employer does not know what the charge should be. He only knows that what is happening is unacceptable to him, and the employee must be dismissed as quickly as possible. As a result, the employee is charged with negligence, poor performance, incapacity, misconduct as well as irretrievably breaking down the trust relationship between the employer and employee which has resulted in the working relationship becoming intolerable.
Employees and employers should take heed of the fact that poor performance looks at “whether the job”, which the employee is supposed to do and being paid to do, “is being done properly.”
Poor Performance results in investigation, counseling, training, meeting and discussion with the employee, before dismissal is contemplated.
The counseling process is termed as “ evaluation, instruction, training or guidance.”
The procedure for handling poor performance involves the employer holding an informal meeting with the employee. The employer must explain where the employee is falling short, what standard is not being met, and discuss the matter fully to see if the reason for the poor performance can be established.
In the meetings with the employee, it is advisable that all the proceedings are recorded in detail. The reason for this is that in the event that the employer eventually dismisses the employee, the employer will have to provide proof that proper counseling and training was given to the employee. The employer may use this as evidence to prove the fairness of the employee’s dismissal.
At the end of the counseling session, the employee must be warned of the consequences of failure to improve where such warning is appropriate. The aim of a counseling session is not to punish the employee, but to assist the employee to recognize and overcome the problem.
There is no rule or law which stipulates how much of counseling or training an employee should receive. This will depend on the extent of the employee’s willingness to co-operate and the employer’s readiness to provide proper counseling and training to help solve the problem.
If the employee is dismissed despite adequate counseling and training, the Code of Good Practice – Dismissal is applied to determine whether the dismissal is substantively and procedurally fair.
The employer is obliged to consider whether the employee did in fact fail to meet a performance standard, if he or she could reasonably be expected to have been aware of the required standard, whether a fair opportunity was given to the employee to meet the required standard, and most importantly whether or not dismissal was an appropriate sanction under the circumstances.
Thus, the first thing to do is to always check that the employee is fully aware of and understands the standards that are not being met.
Thus, the poor performance may not necessarily always be the fault of the employee.
It is vital that every employer must ensure that every employee is fully aware of and fully understands the standards required in his/her job processes. All employees should be fully aware of and fully understand all company rules, regulations, procedures and performance standards. If the employee is not made aware of these standards at the outset, the employer should ensure that it has made the employee aware of these standards during the course of his or her employment.
It is equally important that work processes are monitored to ensure that standards are being met. If an employee does not meet standards, and the employer does nothing about it, the employer is essentially telling the employee that the standards don’t matter and it is of no consequence if he/she fails to meet the stipulated standards.
What are the rights of an employee on probation?
Schedule 8 of the Code of Good Practice: Dismissal, deals with probation.
An employer has the right to require a newly hired employee to serve a period of probation before confirmation of permanent appointment. The purpose of probation is to establish whether or not the appointee’s performance is of an acceptable standard before permanently employing the employee. It is advisable that the probationary period be stated in writing (eg as part of the employment contract or letter of appointment) and that the company’s expectation during the probation period be communicated clearly and are understood by the employee. This period is determined in advance and should be for a reasonable period.
If the employer finds that the employee is performing poorly and before the employer dismisses the employee, the employer must first determine if the employee failed to meet the work standard.
If the employee did not meet the standard:
a) Whether the employee knew; or
b) could he/she have been reasonably expected to have known the standard.
The employer should give the employee instruction, training, guidance and/or counseling to assist the employee to meet the required standard of work.
This means that the employer should evaluate an employee during the probationary period and should provide regular feedback.
After completing the above, the employer should consider other ways short of dismissal, for example, by extending the probationary period in instances where the employee still does not meet the required standard or where the employer is not convinced that the employee is performing to the required standard.
The employer may only decide to dismiss or extend the probationary period only after the employee has had an opportunity to make representations. A trade union representative or a fellow employee may assist the employee.
Although it is not necessary to hold a formal enquiry, the employer must still comply with substantive and procedural fairness.
Please note that probation only applies to newly appointed employees.
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 counseling; and
(b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.
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.
Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on the expiry of a probationary period ought to accept reasons for dismissal that may be "less compelling" than would be the case had the dismissal been effected after the completion of the probationary period.
Disputes over a dismissal based on poor work performance must be referred, within 30 days of the date of dismissal, to the relevant forum. Should you need assistance, call Retrenchment Assist on 011 612 3717.