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How to manage the employment relationship where an employee is trying, but appears to be unable to perform work to the required standard (poor work performance)

When an employee takes on employment, s/he undertakes to work according to reasonable and relevant standards set by the employer. The performance standard should be known to an employee (or s/he should reasonably be expected to know it). The standards may be communicated verbally (for example during a meeting with a manager), in writing (for example, in a memo or letter of appointment), in terms of monthly or quarterly targets, or may be known through practice and custom.

If the employee fails to meet the required standard of performance, the employer must address it.

An employee may not be able reach the performance standard expected of him/her and may not be able to do the work for which s/he was employed due to lack of skill, qualification, knowledge or efficiency. Although there may be no misconduct on the part of the employee who is not performing, an employer may dismiss such an employee in a fair manner provided all reasonable steps have been followed to try to assist the employee to achieve the required standard or reasonable alternatives have been considered.

An example of poor work performance may be a salesperson who may have a clean disciplinary record and works diligently, but despite this cannot meet the required sales targets that have been set by the employer.

What steps must and employer take to assist an employee who is not performing to the required standard?

The following preliminary steps should be taken:

• Assess the employee’s performance by taking an overall view of actual problem areas as compared to actual job requirements.
• Assess what was done, how it was done and note shortcomings against targets, objectives or standards applicable to the job.
• Identify any learning and development/training needs.
• Identify any structural obstacles to performance for example broken equipment or staff shortages.
• Gather all evidence needed which reflect poor performance.
• Obtain information about the employee’s experience, qualifications and personal circumstances from first-hand observation, workplace records and supervisors. Do not make assumptions – gather facts.

If the assessment indicates poor work performance, invite the employee to a counselling session.[/vc_column_text][vc_column_text][/vc_column_text][vc_column_text]How to counsel an employee in a fair manner for poor work performance:

1. Arrange a suitable venue for the counselling meeting and inform the relevant persons who need to attend (for example a manager or a supervisor).
2. Give reasonable notice of the counselling meeting and its purpose to the employee and other role players.
3. Advise the employee that s/he may bring a representative to the consultation. This may be a fellow employee or a trade union representative (shop steward). Assistance by a trade union official only applies if a trade union has been granted organizational rights to have elected shop stewards for this purpose. A trade union representative who does not satisfy this criterion may only assist an employee if s/he is a fellow employee.
4. Should the employee require the assistance of an interpreter, advise the employee that s/he may bring a fellow employee to the counselling session to assist as an interpreter.
5. At the counselling meeting, re-state the purpose of the meeting and how it will run.
6. Advise the employee that notes will be taken and that the proceedings may be recorded by the employer.
7. Explain the effects of poor performance in the workplace (effect on company profitability, additional burden on other employees, etc.).
8. Go through the performance standards required of the employee.
9. Be forthright and truthful when giving feedback to the employee on his or her work performance.
10. Highlight positive and negative performance areas.
11. Provide hard evidence to back up claims of poor performance – avoid general observations.
12. Explain how the employee’s role contributes to the success of the business and that an employer has the right to set reasonable standards.
13. Give the employee and his/her representative the opportunity to comment and respond.
14. Listening actively and open up the discussion if there are disagreements.
15. Listen and respond to the employee’s concerns.
16. Attempt to agree on a reasonable plan of action to improve the employee’s performance:
    • Attempt to get the employee to propose action plans to improve.
    • Set objectives which the employee is expected to achieve. (These objectives should be specific, measurable, achievable, relevant and time-bound). These may include: competencies, outputs or behaviours to be achieved.
    • Identify future training or coaching to achieve the objectives.
    • Identify reasonable structural changes that the employer can make, for example, replacing broken or outdated electronic or other equipment.
    • Provide a written summary of objectives which the employee is expected to achieve (for example: the number of new customers to be recruited by the end of the year; the time it takes to clear an invoice or process an application; the quality of a product; improving customer satisfaction by 25% over the coming year; the amount to be generated in sales etc.)
17. Include clear action steps – who will do what by when.
18. Give the employee a reasonable time period for improvement and record it in writing.
19. Arrange for a follow up meeting on an agreed date and time.
20. Obtain the employee’s commitment to provide feedback and to request help if required, by establishing a channel for open, two-way communication between the employee and his/her manager.
21. Explain that continued poor performance might lead to termination of employment.

After this initial consultation, the employee’s performance must be monitored and recorded as agreed:

• Meet with the employee and his/her representative on the agreed date in order to determine whether there has been an improvement in the employee’s performance.
• Establish whether there has been any improvement and whether there is room for further improvement.
• If there is insufficient improvement, the employee may be issued with a written warning for poor performance.
• An agreement may be reached for a further reasonable time period for improvement.
• Provide the employee with additional training and / or instruction if still needed.
• Schedule follow up meetings accordingly.

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Termination of services – Conduct

Summary termination: Without notice

• Summary termination is a dismissal without notice.
• It is generally only applicable where an employee is dismissed on the grounds of gross misconduct.
• It will normally not apply where an employee is dismissed for repeated minor offences, or for incapacity.

 Notice period

• An employer is entitled either to require the employee to work out the notice period, or to require the employee to leave immediately, in which case the employer must pay the employee for the period he/she would have worked out the notice.

• The latter is often seen as more acceptable to both the employer and the employee, but the choice remains with the employer as to which option to pursue.

• If the employee requests to leave immediately, the employer may agree and is then not obliged to pay notice pay.

Decide / recommend a sanction

• An employer should appoint a person who has knowledge of the disciplinary process. The person does not have to be an external chairperson.
• An employer can determine whether the chairperson of a disciplinary hearing has the power to decide the sanction, or only to recommend a sanction.
• In the latter case the employer must decide whether or not to accept the recommendation.
• Generally, the employer should not decide to impose a harsher sanction than that recommended by the chairperson, but may decide to exercise leniency and impose a lesser sanction.
• Where the employer does wish to impose a harsher sanction, this should be justified and conveyed to the employee, and the employee should be allowed an opportunity to make representations on that aspect.

Appeal/Review

• The employer is only required to grant a right of appeal if this is provided for in the employer’s disciplinary procedure, in a contract of employment and / or in a collective agreement. If such a provision is applicable, the following wording should be added to the notice: ‘You may appeal against the outcome of the hearing within ____ days. If you wish to do so you must submit your appeal in writing setting out the grounds of appeal.”
• If this is not the case, an appeal is not a requirement for procedural fairness and the paragraph providing for an appeal should be deleted.
• Whether or not the employee is entitled to an appeal, the employee must be reminded of the right to refer an unfair dismissal dispute to a bargaining council having jurisdiction or the CCMA, within 30 days of the date of dismissal (or within 30 days of the outcome of an appeal, if any). In terms of this, where an employee is dismissed and must work until the end of the notice period, the date of dismissal is the earlier of the date on which the notice ends, or the date on which the employee is paid all outstanding salary. For summary dismissals without notice, the date of dismissal would be the earlier of the date on which the contract of employment terminated, or the date on which the employee left service.
• Generally, an employer cannot appeal against its own decision if its policies provide that the chairperson makes a final decision on the sanction. If the decision of the chairperson is merely a recommendation, then the employer may exercise a discretion whether or not to accept it, provided that, if the employer wishes to impose a harsher sanction, there are fair reasons to do so.

Return of property

• An employer should ensure that all property to be returned by the employee is specified in the termination letter.

The Template “Termination of services – Conduct” can be used for dismissal for repeated misconduct of a nature that does warrant dismissal without notice or warrants dismissal with notice.[/vc_column_text][vc_column_text]

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GUIDELINE FOR LETTER OF PRECAUTIONARY SUSPENSION

• Suspension should be considered where there is an allegation or suspicion of gross misconduct that could potentially result in the dismissal of the employee.
• The reason for suspension is usually either because there is a possibility that the employee may interfere with the investigation of the allegations, by tampering with evidence or by attempting to influence witnesses, or because there is a possibility of the employer suffering further harm (for example in the case of an allegation of gross negligence, theft, fraud, etc.).
• The reason for the proposed suspension should be stated clearly.
• In terms of Long v South African Breweries (Pty) Ltd & others (2019) 40 ILJ 965 (CC), it is no longer required that the employee must be given an opportunity to make representations as to why he/she should not be suspended before a final decision is made, unless this forms part of a collective
  agreement or of the employer’s disciplinary procedures. Precautionary suspension MUST be on full pay, and the period of suspension should be kept as short as reasonably possible.
• Once formal allegations (charges) have been levelled against the employee, the employee must be allowed reasonable access to the workplace and fellow employees in order to prepare a response (access to a computer may be required; this can be done under the employer’s supervision) and to consult with his/her representative and potential witnesses.
• The employee and his/her representative should not be allowed to consult with the employer’s witnesses.
• Company property to be returned will normally include company laptop, company records and documentation, all keys and access cards and company credit cards. Optional property to be returned may include a cell phone and company vehicle. Where the employee has been instructed to return
  company property, all company property should be returned.
• Arrangement should be made to keep in touch with the employee. Since the employee is still being paid, the employer is entitled to require the employee to attend at company premises at any stage (during working hours).
• The employee should be requested to sign the employer’s copy of the letter of suspension, purely as an acknowledgement of receipt. If he/she refuses to sign, a witness should be requested to sign as confirmation that the letter was handed to the employee.

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Recording disciplinary sanctions

• Disciplinary sanctions can vary from a verbal warning up to a final written warning and/or suspension without pay, depending on the relevant circumstances.
• The norm for minor misconduct is to commence discipline with a verbal warning (normally after initial informal discussion or counselling).
• If there is no improvement an employer can then progress to a written warning (sometimes a first and second written warning and then a final written warning.
• For more serious misconduct it may be appropriate to give a written or a final written warning for a first offence. Disciplinary proceedings will be conducted to determine the employee’s guilt where there is reasonable belief that the conduct complained of might attract a final written warning or dismissal as a sanction. A disciplinary checklist will be used to record the disciplinary steps taken.
• An employee may be represented by a colleague of his choice or a trade union representative (shop
  steward) of a trade union of which he or she is a member when he or she is being issued with a warning.
• Guidelines as to the appropriate level of penalty should be followed if they are contained in an employer’s contract of employment or Disciplinary Code.
• Exceptional forms of disciplinary action include demotion (with loss of pay) and/or suspension without pay for a limited period. These can generally only be imposed as an alternative to dismissal, with the agreement of the employee, as a measure of leniency. If the employee does not accept the proposed
  alternative, an employer may proceed with dismissal.
• It is important that a record must be kept of all forms of discipline. These may be required to justify a subsequent dismissal, by showing that a progressive / corrective disciplinary process has been followed. The warning(s) should be handed to the employee and a copy/copies placed on his or her personnel file.
• The template ‘Record of Disciplinary Sanction’ can be used to record the action taken, the date of the action, and the period of validity.
• As a guideline, verbal warnings are often valid for 3 to 6 months, written warnings for 6 to 12 months, and final written warnings almost always for 12 months (this period may be longer in some circumstances, for example in the case where a second final written warning is given, after the first has expired).
• The employee should be requested to sign the employer’s copy of the notice, purely as an acknowledgement of receipt.
• If he/she refuses, a witness should be requested to sign as confirmation that the notice was handed to the employee.

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