As a follow up to discussion on the law of dismissal we will now be venturing to discuss the reasons for dismissal as recognised by the law- See section 66 of the Labour Code Order of 1992. These include dismissal based on poor performance/incapacity, specific forms of misconduct, operational requirements. In the present article our focus will be on incapacity-poor performance. Incapacity is categorised as physical capacity that arises where an employee is rendered unable to perform his duties due to a certain bodily impairment such as a long term disease or disability. However for our present purposes we are concerned with incapacity where the employee is physically capable but the employee is unable to perform his duties as expected. We introduced in our preceding article the different forms of incapacity.
We further made mention of the fact that Incapacity dismissals are in fact no fault dismissals as these are based on employees’ inability to perform. We shall today specifically discuss Incapacity – poor work performance. It must be noted however that much as poor work performance is a form of incapacity there are instances where poor work performance arises from misconduct or wilful negligence – See John Grogan “Workplace Law” Juta and Company 11th Edition 2014 at page 303. It is therefore important to determine whether the poor performance is attributable to fault on the part of the employee (in which instance the employer will discipline the employee) or whether it was in fact caused by circumstances beyond the employee’s control (in which instance the employer will need to adopt a different and more sympathetic approach which might ultimately culminate in an incapacity hearing being held prior to dismissal of the employee in question).
There is sometimes a thin line between incapacity poor work performance and misconduct or wilful negligence. A useful test for whether poor performance constitutes misconduct or incapacity was formulated by the Labour Court in ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman NO (2013) ILJ 2347 (LC). It did this by asking two questions: Did the employee try but could not? And “Could the employee do it but did not?”If the answer to the first question is yes, the matter concerns poor performance because the employee tries to achieve what is expected of him or her but cannot do so. If the answer to the second question is in the affirmative, then the substandard performance constitutes misconduct. In that case the employee has the capacity to perform to the required standard but fails to do so.
It is advisable therefore that employers stipulate the performance standards, be it in the employees’ contracts of employment or in the employers’ manuals that must be brought to the specific attention of employees. Some standards may however be inferred from the practice or custom in the particular industry in which the employees are employed. Code 13 (1) of the Labour Code (Codes of Good Practice) Notice 2003 stipulates and we quote;
“Any person who determines whether a dismissal for poor work performance is fair should consider –
- whether or not the employee failed to meet a performance standard;
- whether the employee was aware, or could reasonably be expected to be aware, of the required performance standard;
- whether the performance standards are reasonable;
- the reasons why the employee failed to meet the standard;
- whether the employee was afforded a fair opportunity to meet the performance standards.”
As can be deduced from above Code 13 on the one hand outlines the substantive criteria. Code 14 of the said Codes on the other hand outlines fair procedure. It generally requires employers to give guidance, instruction or training before dismissing employees for poor performance. The employee must be given reasonable time to improve. What is reasonable will largely depend on the nature of the nature of the job, employee status, length of service etc. An employer may dispense with giving an employee opportunity to improve if the particular employee is a manager or of such seniority that he or she is able to judge for himself or herself whether or not she is meeting the required standards based on his or her knowledge and experience. An opportunity to improve may also not be necessary where the degree of professional skill that is required is so high that the potential consequences of the slightest departure may be so grave that even an isolated instance of departure may justify dismissal.
In conclusion, it is important for employers to investigate the reasons for poor performance as that will have a bearing on the fairness of subsequent action to be taken.
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