Want to Know the Best Practices for Employee Personnel Files? Dismissal for Alleged Incapacity: POOR WORK PERFORMANCE This checklist has been prepared having regard to the CCMA Arbitration Guidelines, the Code of Good Practice: Dismissal and relevant case law v34 Go to www.purshotam.co.za for an updated version of this document plus many more aids NB: The law does NOT require that each and every (Own emphasis) In a Nutshell: If the Employee do not correct his/her behaviour there is a real possibility that the Employer can subject him/her to an incapacity- poor work performance hearing that can lead to dismissal . Because poor performance and misconduct differ, the procedures for dealing with them are also different. The employee did not challenge the chairperson on this evidence of his conduct of the hearing, nor did she put to him her allegation that he had prejudged the matter. Guidelines in cases of dismissal for poor work performance. On the question of the privacy of disciplinary measures the company ought to inform employees of its approach to standards of conduct and performance even if this is only in a general way so that the staff knows what they are up against. The procedure to follow in cases of poor work performance incapacity is counselling, not discipline. Evidence of the employee’s poor performance (such as examples of inadequate work, or complaints by customers or colleagues) should be retained and shared with the employee at each stage of the process. By not supplying a reason, your company can use any and all evidence to defend itself. Please enable the javascript to submit this form. arise out of poor work performance in a team which functions under the leadership and motivation of the manager concerned. An essential ingredient required to make such a dismissal fair, however, is to follow a proper dismissal process. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. She received a written warning for poor performance in July which was valid for 12 months. factors that affected his performance. She has covered HR for The Balance Careers since 2000. He reviewed the 3 jobs on which there were errors and considered that there were adequate grounds to find that the employee was negligent and therefore to terminate services and he recommended summary dismissal. POOR PERFORMANCE The Labour Relations Act, recognises three types of dismissal, namely: - Misconduct - Operational requirements (retrenchment) - Incapacity (ill health, injury, poor performance) Schedule 8 of the Labour Relations Act lays down the following Code of Good Practice when dealing with poor performance;- “9. However, the primary objective of formal performance assessment is to allow for correction before instituting the investigation. Dismissal for incapacity on the basis of poor work performance. The commissioner found, after listening to the evidence on the actual jobs on which the company complained, that the company had discharged the onus of proving on a balance of probabilities that the employee’s work performance was below expected standards, however she found that negligence is only gross if it borders on the reckless. She tendered no convincing factual basis for her claim that her employer was racist, or that there was a conspiracy to get rid of her. Operational requirements are de Incapacity: Poor work performance (1) A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. The LRA clearly differentiates between the reason for dismissal for poor performance and ill-health or injuries. The Labour Relations Act, 66 of 1995 (LRA) recognises incapacity and misconduct as grounds for dismissal. Here the customer had already signed off on the project so there did not appear to be a reckless neglect amounting to gross negligence. Dismissal for incapacity on the basis of poor work performance. The procedure for dismissals for poor work performance requires that the employee should be counselled, monitored and offered assistance before the contract is terminated. The previous Labour Appeal Court held that the substantive fairness of a dismissal based Hold this meeting as soon as you have the information, documentation, and proof necessary to fire the employee. The employee had not realised how strict the standards would be and there is at least the suspicion that if she had not been so aggressive and resentful of authority the company might well not have held a formal enquiry back in July. Obviously, this won't apply in cases of ​no-show, no-call job abandonment. Article by: Jacques du Toit. We are now taking a look at the fairness of dismissal in cases of incapacity based on ill health. Demonstrate an understanding of the legislation underpinning the management of poor performance, absenteeism, sick leave, incapacity and minor misconduct at the workplace. She resented criticism and dubbed it as interference The commissioner considered that the company had adequate grounds to terminate services for poor performance exacerbated by a breakdown in the employment relationship. The 5 steps PRIOR TO dismissal for incapacity: Ill health / injury NB: Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. 8.1.1 whether the employee failed to meet performance standards; 8.1.2 whether the employee was aware, or could reasonable be expected to have been aware, of the required performance standards; Dismissal will be with notice as poor performance is not gross misconduct. Dictionary.com describes “ force majeure ” as unforeseeable circumstances that prevent someone from fulfilling a contract. ... namely Poor Work Performance and Ill Health or Injury. Since disgruntled former employees can and often do use anything you put in writing to take legal action, keep the letter simple and don't state a reason for the termination. Susan Heathfield is an HR and management consultant with an MS degree. The existence or otherwise of capability and fault / blameworthiness for the lack of performance on the part of the employee determines whether one is dealing with misconduct or incapacity. a) The first of these is that the employer is given a good deal more latitude by the Code in assessing whether the employee has failed to meet the required performance standard during probation (the substantive element of a dismissal for poor work performance), than thereafter, when the arbitrator must decide whether dismissal was an appropriate sanction. Poor work performance (incapacity) vs. misconduct We are often confronted with enquiries from clients that demonstrate that many managers are still not familiar with the difference between misconduct and incapacity. We dealt previously with the fairness of dismissal for misconduct, and we are now taking a look at the fairness of dismissal in cases of incapacity or poor work performance. Schedule 8 to the LRA also provides guidelines in relation to the different procedures that have to be followed in the case of incapacity due to poor performance and misconduct respectively. This information is for guidance, ideas, and assistance. Despite this allowance, the principle that dismissals must be based on fair reasons still stands. ( j) Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period. The appeal was not successful. Generally, an employer cannot justifiably conclude that dismissal is necessary if the employee could conceivably have met the required standard within a reasonable period. 8. A dismissal for poor performance is only justified if the employee was counseled, offered assistance, given a reasonable time within which to improve the performance and despite being made … In situations where the employee is not at fault you will be required to help the employee stay in employment if this is at all reasonably possible. It appears from the undisputed record of the enquiry and the chairperson’s oral evidence that he did explain to her that if she were prejudiced he would postpone the matter. Dismissals for Incapacity: Poor Work Perfomance. SUMMARY OF JUDGMENT: Although the employee was justifiably concerned that she was unable to prepare herself properly because the nature of the evidence was technical and specific, she was not entitled to demand all the evidence before the hearing and then to walk out when she did not get it. In situations where the employee is not at fault you will be required to help the employee stay in employment if this is at all reasonably possible. 8. They are Unsuitability and General Incapacity which will be discussed in the near future. This letter confirms your dismissal from the Ernesto Company for poor performance, effective immediately. There seems to be a lack of understanding of the clear distinctions that separate the various conditions – in other words, the employer does not know what the charge should be. Your performance has been assessed many times and you have been informed about it multiple times. Your performance has been documented in three letters of reprimand which you read and signed. At common law an employer may terminate on reasonable notice unless the employee has committed a major breach of contract. During this final investigation there is a further factor that the employer has to take into account. This letter confirms your dismissal from the Ernesto Company for poor performance, effective immediately. An important factor is that the capacity or incapacity of the employee refers to past performance, and not to an " inability to meet an entry-level requirement for a new or a redesigned job." She had short service with the company and on the undisputed evidence prospects of improving that relationship were not good. Attention will be accorded to specific acts or alleged acts of misconduct involving senior employees. At the hearing the employee requested postponement because she had not had enough time to prepare. CEO Dispute Resolution Official – Bethlehem Dismissals for Incapacity: Poor Work Perfomance. It is important that one must differentiate between incapacity poor performance and ill-health or injuries. It is important that one must differentiate between incapacity poor performance and ill-health or injuries. However, the primary objective of formal performance assessment is to allow for correction before instituting the investigation. A letter that outlines the status of your benefits upon your dismissal, so we have accounted for company-owned... 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