Search
  • Emily

POOR PERFORMANCE: WHAT OUR LAWS SAY ABOUT PERFORMANCE MANAGEMENT


WHAT IS PERFORMANCE MANAGEMENT?


An employee can be placed under performance management for poor performance and the employee can ultimately be dismissed for incapacity in the event that the employee fails to meet certain reasonable standards and in the event that the employee provides work that are of poor quality.


EXAMPLES OF POOR PERFORMANCE:

  • An employee who fails to reach sales targets;

  • An employee who does not provide good quality work;

  • An employee who makes basic mistakes in the performance of his/her day to day duties;

  • An employee who fails to perform his/her duties and fails to meet deadlines;

  • An employee who struggles to work within a team.

WHAT DOES THE CODE OF GOOD PRACTICE SAY?


Incapacity: Poor work performance


A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. The period should be determined by the nature of the job, and the time it takes to determine the employee's suitability for continued employment. When appropriate, an employer should give an employee whatever evaluation, instruction, training, guidance or counselling the employee requires to render satisfactory service. Dismissal during the probationary period should be preceded by an opportunity for the employee to state a case in response and to be assisted by a trade union representative or fellow employee.


After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has-

  1. given the employee appropriate evaluation, instruction, training, guidance or counselling; and

  2. 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.

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.


Guidelines in cases of dismissal for poor work performance


Any person determining whether a dismissal for poor work performance is unfair should consider-

  1. whether or not the employee failed to meet a performance standard; and

  2. if the employee did not meet a required performance standard whether or not-

  3. the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;

  4. the employee was given a fair opportunity to meet the required performance standard; and

  5. dismissal was an appropriate sanction for not meeting the required performance standard.

CLEAR WORK PERFORMANCE STANDARDS


The employer needs to have clear performance standards and the employee must be aware of the standards and rules in respect of his/her duties specifically and which are applicable to his role.


The employee must be fully aware of the company standards pertaining to the specific job and the employee must be fully trained and equipped to perform and fulfil the role in which he has been appointed, especially if his/her role is specialized and not a general position within the workplace.


It is essential that employers provide their employees with key performance indicators which are regularly assessed and feedback should be given to the employee in respect of such evaluations. Furthermore, an employer must ensure that all employees have a clear and detailed job description along with the relevant qualifications and experience in such a role. An employee with specific qualifications will be be measured at a higher standard and will be expected to have the relevant knowledge and skills of basic duties required of such a position. This would negate a need for basic training to be provided to the employee.


WHAT PROCEDURE NEEDS TO BE FOLLOWED?


Performance management is not a disciplinary matter and not a form of misconduct and it rather calls for meaningful consultations and discussions around the performance issues and shortfalls, identifying and correcting these issues, and further assistance from the employer to help the employee improve.


Performance is measured by how well the employee does the job he/or she is tasked with and performs his/her duties. – i.e. quality, results, targets. Whereas misconduct deals specifically with behaviour or conduct of the employee on the job in relation to company rules, policies and procedures.


Employees cannot be expected to meet standards that have not previously been explained to him/her her or communicated. Many employees are not given the relevant and/or necessary introduction/orientation and/or explanation of their duties, performance standards, company procedures and tasks. This may cause problems later for an employer if they fail to give the employee proper and meaningful.


The employer must prove that the standards and time frame in which the improvement is made is in fact reasonable and reachable. To set unrealistic goal posts and requirements during the performance management process will result in the employee possibly approaching the CCMA for referrals such as unfair dismissal and/or unfair labour practices.


WHAT PROCEDURE MUST THE EMPLOYER FOLLOW TO REMEDY POOR PERFORMANCE?


Normally an employer sets up an informal meeting with the employee in order to discuss the employee’s shortcomings and explain where the employee is falling short, also to explain and discuss what standards are not being met and to discuss the possible reasons for the poor work performance.


The employer can also provide counselling if the cause for the poor performance is due to some outside factors and/or influences which are affecting the employees ability to perform.

In the event that the employee’s performance doesn’t improve after the first informal consultation and discussion regarding his/her performance and the employer did everything reasonably possible from its side in order to assist the employee, i.e provided training, clear description of target and standards, counselling, then the employer may give the employee a written warning.  


The reason for submitting the employee to performance management must be fair reasonable, and must be done in good faith.


SHOULD THE EMPLOYER OFFER AN ALTERATIVE TO THE EMPLOYEE IF THE POOR PERFORMANCE CONTINUES?


Dismissal should always be the last resort, and the employers should never lightly revert to dismissal when other alternatives are available to them.


Examples of alternatives which the parties can consider and discuss:


a. Demotion;

b. Reduced salary;

c. Alternative position;

d. Smaller targets and reduced commission.


DISMISSAL FOR POOR PERFORMANCE?


Dismissal for poor performance is only justified if the employee was counselled, offered assistance by the employer, given a reasonable time to improve his/her performance, and despite having been made aware of the possible consequences of such failure to improve, did not do so.


Should the employer fail to abide by the procedures set out herein and dismisses the employee without reasonable consultation and opportunity for improvement, the employee may refer the dismissal to the CCMA as an unfair dismissal within 30 (thirty) days of the date of dismissal in which he/she can claim a maximum of 12 months remuneration as compensation.


For assistance in drafting performance management policies and/or administration of performance management consultations, or for advice relating to performance management, contact us on 010 109 1055 or emily@kernattorneys.co.za.

14 views0 comments