How to end the employment relationship in a fair manner where the employee is unable to perform work to the required standard (poor performance)
As per this this guide on “How to manage the employment relationship in a fair manner where an employee is not performing to the required standard” if an employee is not performing well, an employer should assess the employee’s performance, give the employee feedback regarding his/her performance, provide the employee with appropriate training, guidance, or counselling, and give the employee a fair opportunity to improve.
Should the employee not improve, and the employer is satisfied that it has done what is reasonably possible to assist the employee, the employer may convene a hearing to address the situation and to make a final decision as to the way forward.
How to conduct a fair incapacity enquiry for poor work performance
- Arrange a chairperson and appropriate venue for the hearing. Inform the relevant persons of the need to attend the hearing. The chairperson’s role is to evaluate the alleged poor performance by listening to the employee’s supervisor/manager and the employee, then determine if underperformance exists.
Large companies often rely on a designated chairperson, while smaller businesses may have the owner assume this role in addition to providing evidence regarding the employee’s performance. - Give the employee a notice to attend a poor performance hearing.
- Advise the employee that he/she may bring a fellow employee as a representative to the hearing. Assistance by a trade union representative (shop steward) only applies if a registered trade union has been granted the right to have elected shop stewards for this purpose. A trade union representative
who does not satisfy this criterion may only assist the employee in his/ her capacity as a fellow employee. - Should the employee require the assistance of an interpreter, advise the employee that he/she may bring a fellow employee to the hearing to assist as an interpreter.
- At the start of the hearing ensure that the employee understands the purpose of the performance hearing.
- Explain how the hearing will be conducted.
- Allow the supervisor/manager to present the performance standards required, details of previous consultation(s), commitments made, and steps taken to improve performance as well as comment on the degree to which the employee’s performance meets the required standards. The supervisor/ manager is required to provide evidence to back up the allegation of poor performance and explain how the employee’s poor performance negatively affects the business. The supervisor/manager may call witnesses to the hearing.
- Give the employee and his/her representative the opportunity to respond and, if required, call witnesses.
- If witnesses are called, give the supervisor/manager and the employee and his/her representative the opportunity to question the witness.
- Adjourn the hearing to consider an appropriate finding. The checklist below, based on the requirements for a fair dismissal, will assist in making a finding:
| CHECKLIST: DISMISSAL BASED ON POOR PERFORMANCE | ||
| a) | Did the employee fail to meet a performance standard? | |
| b) | If yes, in what way did the employee fail to meet the standard/s? | |
| c) | Are the standard/s reasonable and achievable? | |
| d) | Was the employee aware of the standard/s or could reasonably be expected to be aware of the standard/s? | |
| e) | If yes, how was the employee made aware of the standard/s or on what basis could the employee reasonably be expected to be aware of same? | |
| f) | Was the employee given a fair opportunity to meet the standard/s? For example was the employee given training, evaluation (performance assessment and feedback) and counselling? | |
| g) | Did the employee receive adequate support and assistance to meet the standard/s? | |
| h) | Did the employee have enough time to meet the standard/s? | |
| i) | Was the employee informed of the possible consequence (dismissal) if performance did not improve to the required standards? | |
| j) | Would it be appropriate for the employer to consider dismissing the employee under the circumstances? | |
11. If the answer to each question above is “yes, consider whether it is possible to take any action short of dismissal, including providing another opportunity for the performance to improve, alternatively demoting the employee, or giving the employee a different role (by agreement and where reasonable).
12. If there are no other reasonable alternatives available, dismissal may be the only option.
13. Reconvene the hearing and advise the employee of the outcome.
14. If the decision is to dismiss the employee advise the employee in writing of this decision and briefly explain why the decision was reached (use the checklist above as a guide).
15. Advise the employee of his/her right to refer an unfair dismissal dispute to the CCMA or a bargaining council within 30 days if he/she feels that the dismissal is unfair.