Categories

Incapacity – Poor Work Performance

Poor Work Performance - Incapacity

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Blueprint Summary

Introduction

Not only do staff not always do what is expected of them, but they sometimes do not have the ability to deliver what is required of them. For a business owner, there is nothing more frustrating than to employ someone for a specific task, only then to realise that this person is not able to deliver the required results.

In terms of labour legislation, no employer is obliged to retain an employee who does not perform according to the company’s expectation.

In terms of item 9 of Schedule 8 of the Labour Relations Act:

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

(a)        whether or not the employee failed to meet a performance standard; and

(b)        if the employee did not meet a required performance standard whether or not

(i)         the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;

(ii)         the employee was given a fair opportunity to meet the required performance standard and

(iii)        dismissal was an appropriate sanction for not meeting the required performance standard.

From Schedule 8 it is therefore clear that no disciplinary process is initially envisaged. The process is one of counselling with the view to remedy the situation, and only if this is not successful, to then proceed to terminate services.

For this procedure to be effective and for the employer’s reason for the dismissal related to Poor Work Performance to be accepted, a duty rests on the employer to ensure an objective and fair means to monitor the employee’s performance was applied. It must be remembered that actual poor performance must be proven by the employer against a standard, and thus the standard must be clear and known to employees. It is strongly advised to document and communicate the performance standard.

Performance standards must be:

  • measurable
  • attainable
  • consistent

As to the applicable process to follow, the following steps can serve as a summary of the process:

  • Informal counselling
  • First formal counselling session
  • Evaluation period
  • Final formal counselling session

Informal process

When an employee commences employment, he must clearly understand what is expected of him. There is nothing more frustrating than a statement of “I did not know that this was required of me”. Unfortunately, few employers have proper induction programmes that would guide and assist employees in this regard. More often than not, employees are immediately “thrown into the mix” as it were, without a proper understanding of what is required of them.

Before any counselling session is therefore held with a non-performing employee, the employer first has to establish whether the employee was aware of the requirements and standards of the position and that these standards have actually not been met.

Schedule 8 endorses the concept of corrective action versus punitive action. Therefore should the employer believe that the employee’s services are not up to standard, the employer should bring this to the employee’s attention right then and there. Should this not have the desired result then the employer should contemplate more formal steps.

First Poor Work Performance counselling session

Once an employer realises that someone is not performing and has established the necessary facts, the first thing that an employer should do is to convene an initial Poor Work Performance Counselling Session.

The employee must be given sufficient prior written notice of the counselling session and the purpose of the counselling session, and the fact that the employee may be assisted in the counselling session by a representative.

During the counselling session, the following must be discussed:

 

  1. the required performance standards
  2. the current performance problems
  3. a reasonable time period of improvement, given the nature of the job
  4. a clear, unambiguous ultimatum discuss the way ahead,

The employer must either forward the employee minutes of the counselling session or forward correspondence outlining what was discussed in this session.

 

Evaluation period / time period for improvement

This period should be a reasonable time period for the employee to improve and will be determined given the nature of the job.

During this period the employer must do everything in their power to assist the employee to rectify their performance. This would include affording the employee whatever evaluation, training, instruction, assistance and guidance the employee may request.

If the employee requests certain assistance, which is practicable and reasonable, the employer has to assist the employee with this request, i.e. where a person requires information or assistance regarding the business procedures, systems-training or product knowledge.

In certain situations, a request for assistance may not be a reasonable request, for example where an employee is employed as a skilled and experienced sales person and now suddenly requires sales skills training. In the aforementioned scenario, the employee accepted employment with the company on the basis that he was a qualified sales person. Therefore one can reasonably accept that someone with sales skills expertise would not require training from the employer on how to sell a product or how to negotiate a deal with a client. The employer could then deny the employee’s request for sales skills training on the grounds that the employee is supposed to be a qualified sales person.

It is imperative that employers make a concerted effort to monitor and minute the employee’s performance on a regular basis during this time. Should the employee fail to do this effectively, this may result in the employer not having sufficient evidence to prove the Poor Work Performance allegation against the employee at a later stage. Furthermore, if something happens during this evaluation period, i.e. where the employee does something wrong, the employer has to give the employee feedback so that he is aware of his shortfall. This would hopefully result in the employee refraining from doing the same thing during the rest of his evaluation period.

Evaluation at the end of the improvement period

Should the employee’s performance have improved to a satisfactory level, it would not be necessary to undergo the final poor work performance session. It is however advisable to inform the employee that you find his current performance to be satisfactory, but should the employee not maintain this, the employer may immediately convene a final performance evaluation session and the employee may be dismissed.

Should the employee’s performance not be to the required level, then the employee should be served notice to attend a final poor work performance session.

 

Final poor work performance session

If the employee does not achieve the required standard, despite the employer’s attempts to assist and evaluate the employee, the employer has no other option but to hold a final incapacity investigation for PWP. During this investigation, the employer will present particulars on what transpired in the various counselling sessions, on the operational job requirements for the position, on the employee’s results in achieving said requirements and the evaluation of the employee. The employee will receive an opportunity to respond.

As with a disciplinary inquiry, the employee will have the same rights during this final Poor Work Performance counselling session. These rights include the right to representation, right to an interpreter and the right lead evidence. The employee should also be given the opportunity to give evidence in mitigation, i.e. factors that affected his performance.

Sanctions short of dismissal

During this final investigation, there is a further factor that the employer has to take into account. The employer should consider alternatives to dismissal for Poor Work Performance. These could include a transfer or the demotion of an employee. Employers do however need the employee’s consent before imposing such a transfer. 

Process flow

Process Specification

Process Owner

Stakeholder(s)

Recording Requirements

Reporting Requirements

The person that is accountable for this specific process.

All parties that have a vested interest in this process.

Requirements that need to be recorded during this process. What, How, Where.

Requirements that need to be stored during this process. What, How, When, Where.

Storage Requirements

Audit Requirements

Notifications

Reminders

Requirements that need to be reported on during this process. What, How, When, Where.

Requirements that need to be met in to comply with Auditing Regulations.  What, How, When, Where & Type of Audit Requirement.

Any Notifications that need to be Generated and/ or Actioned During this Process.

Any Reminders that need to be Generated and/ or Actioned During this Process.

Transparency & Communication

Knowledge & Skills

System

Workflows

 Any Transparency, Communication & Distribution Requirements needed for this Process.

 Any Knowledge & Skills required to successfully complete this process.

Links and Process within a system that directly relates to this Process.

Are there any Workflows that drive this Process? This can be Manual or NFE Workflows.

TEMPLATES, FORMS, GUIDES AND WORK INSTRUCTIONS

Legislation & Governance

S.A. Board for People Practices

Links to Templates, Forms Guides & Work Instructions that are either to be used for application or as Guidelines to meet minimum requirements for this Process

Any Legislation, Bodies, Processes, Policies that Govern this Process.

Does this Process Align with SABPP. This can either be Fully, Partially or Not at All.

The Process

Inputs are all of the Elements deemed necessary to complete the process successfully.

  • Notice to attend first PWP Session
  • Notice to attend PWP Evaluation Session

Tasks are the Step-by-Step Actions to be taken to complete the Process.

  • Termination Notice

Tasks are the Step-by-Step Actions to be taken to complete the Process.

Introduction

Not only do staff not always do what is expected of them, but they sometimes do not have the ability to deliver what is required of them. For a business owner, there is nothing more frustrating than to employ someone for a specific task, only then to realise that this person is not able to deliver the required results.

In terms of labour legislation, no employer is obliged to retain an employee who does not perform according to the company’s expectation.

In terms of item 9 of Schedule 8 of the Labour Relations Act:

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

(a)        whether or not the employee failed to meet a performance standard; and

(b)        if the employee did not meet a required performance standard whether or not

(i)         the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;

(ii)         the employee was given a fair opportunity to meet the required performance standard and

(iii)        dismissal was an appropriate sanction for not meeting the required performance standard.

From Schedule 8 it is therefore clear that no disciplinary process is initially envisaged. The process is one of counselling with the view to remedy the situation, and only if this is not successful, to then proceed to terminate services.

For this procedure to be effective and for the employer’s reason for the dismissal related to Poor Work Performance to be accepted, a duty rests on the employer to ensure an objective and fair means to monitor the employee’s performance was applied. It must be remembered that actual poor performance must be proven by the employer against a standard, and thus the standard must be clear and known to employees. It is strongly advised to document and communicate the performance standard.

Performance standards must be:

  • measurable
  • attainable
  • consistent

As to the applicable process to follow, the following steps can serve as a summary of the process:

  • Informal counselling
  • First formal counselling session
  • Evaluation period
  • Final formal counselling session

Informal process

When an employee commences employment, he must clearly understand what is expected of him/her. There is nothing more frustrating than a statement of “I did not know that this was required of me”. Unfortunately, few employers have proper induction programmes that would guide and assist employees in this regard. More often than not, employees are immediately “thrown into the mix” as it were, without a proper understanding of what is required of them.

Before any counselling session is therefore held with a non-performing employee, the employer first has to establish whether the employee was aware of the requirements and standards of the position and that these standards have actually not been met.

Schedule 8 endorses the concept of corrective action versus punitive action. Therefore, should the employer believe that the employee’s services are not up to standard, the employer should bring this to the employee’s attention right then and there. Should this not have the desired result then the employer should contemplate more formal steps.

First Poor Work Performance counselling session

Once an employer realises that someone is not performing and has established the necessary facts, the first thing that an employer should do is to convene an initial Poor Work Performance Counselling Session.

The employee must be given sufficient prior written notice of the counselling session and the purpose of the counselling session, and the fact that the employee may be assisted in the counselling session by a representative.

During the counselling session the following must be discussed:

  1. the required performance standards
  2. the current performance problems
  3. a reasonable time period of improvement, given the nature of the job
  4. a clear, unambiguous ultimatum
  5. discuss the way ahead

The employer must either forward the employee minutes of the counselling session or forward correspondence outlining what was discussed in this session.

Evaluation period  / time period for improvement


This period should be a reasonable time period for the employee to improve and will be determined given the nature of the job.

During this period the employer must do everything in their power to assist the employee to rectify their performance. This would include affording the employee whatever evaluation, training, instruction, assistance and guidance the employee may request.

If the employee requests certain assistance, which is practicable and reasonable, the employer has to assist the employee with this request, i.e. where a person requires information or assistance regarding the business procedures, systems-training or product knowledge.

In certain situations, a request for assistance may not be a reasonable request, for example where an employee is employed as a skilled and experienced sales person and now suddenly requires sales skills training. In the aforementioned scenario, the employee accepted employment with the company on the basis that he was a qualified sales person. Therefore one can reasonably accept that someone with sales skills expertise would not require training from the employer on how to sell a product or how to negotiate a deal with a client. The employer could then deny the employee’s request for sales skills training on the grounds that the employee is supposed to be a qualified sales person.

It is imperative that employers make a concerted effort to monitor and minute the employee’s performance on a regular basis during this time. Should the employer fail to do this effectively this may result in the employer not having sufficient evidence to prove the Poor Work Performance allegation against the employee at a later stage. Furthermore, if something happens during this evaluation period, i.e. where the employee does something wrong, the employer has to give the employee feedback so that he is aware of his shortfall. This would hopefully result in the employee refraining from doing the same thing during the rest of his evaluation period.

Evaluation at the end of the improvement period

Should the employee’s performance improve to a satisfactory level it would not be necessary to undergo the final poor work performance session. It is however advisable to inform the employee that you find his current performance to be satisfactory, but should the employee not maintain this, the employer may immediately convene a final performance evaluation session and the employee may be dismissed.

Should the employee’s performance not be to the required level, then the employee should be served notice to attend a final poor work performance session.

Final poor work performance session

If the employee does not achieve the required standard, despite the employer’s attempts to assist and evaluate the employee, the employer has no other option but to hold a final incapacity investigation for PWP. During this investigation, the employer will present particulars on what transpired in the various counselling sessions, on the operational job requirements for the position, on the employee’s results in achieving said requirements and the evaluation of the employee. The employee will receive an opportunity to respond.

As with a disciplinary inquiry, the employee will have the same rights during this final Poor Work Performance counselling session. These rights include the right to representation, right to an interpreter and the right lead evidence. The employee should also be given the opportunity to give evidence in mitigation, i.e. factors that affected his performance.

Sanctions short of dismissal

During this final investigation there is a further factor that the employer has to take into account. The employer should consider alternatives to dismissal for Poor Work Performance. These could include a transfer or the demotion of an employee. Employers do however need the employee’s consent before imposing such a transfer. 

END OF PROCESS