Poor work performance is the failure of an employee to reach and/or maintain an employer’s work performance standards. Poor work performance is not based on fault and therefore can be differentiated from misconduct processes. Like ill-health, it falls under the heading of incapacity. In Gold Fields Mining South Africa (Pty) Ltd v CCMA and Others (2014) 35 ILJ 943 the court explained the concept and distinguished between incapacity and misconduct as follows:
“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. In such a case the employee would potentially lack the skills, knowledge, or competencies to meet the employer’s standards. In this case the problem lies with the employee’s aptitude; although willing to do what is required, he/she is unable because of some factor linked to the employee that he/she has little or no control over.
A dismissal for misconduct is based on the employee’s fault i.e., intentional or negligent non-compliance to company rules or standards. A degree of blameworthiness is therefore ascribed to the employee.”
Therefore, if it is not considered to be misconduct how should an employer handle and employee who is not meeting the required work performance standards?
Item 8(2) and 8(3) of the Code of Good Practice: Dismissal in Schedule 8 of the Labour Relations Act stipulates that:
(2) After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has –
(a) given the employee appropriate evaluation, instruction, guidance, training, or counselling; and
(b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.
(3) The procedure leading to a 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 that matter.
This means that an employer must set out reasonable, lawful, and attainable work performance standards in the workplace which must be known by the employee. It is best practice to set out these standards in writing by way of workplace policies in the contract of employment. An employer should then measure the employee’s performance against the set-out standards.
If the employee fails to meet the standards the Employer should consult and inform the employee that he/she is not meeting the required standards. The Employer should endeavour to identify and rectify the causes of the poor work performance by way of further training, guidance and counselling and give the employee a reasonable period of time in order to improve his/her work performance.
If the employee’s performance still does not improve the employer should embark on a series of poor work performance inquires which may lead to the employee’s dismissal.
Poor work performance is a valid ground for dismissal, however, is imperative that the employer follow the process as set out in the Code of Good Practices.
Article by: Ruaan Heunis
Dispute Resolution Official – East London