Dismissals based on poor performance

One of the reasons why employers look to discipline employees is as a result of poor employee performance. Employers however often do not realise that poor work performance is a form of incapacity and does not constitute misconduct or negligence. Employee poor performance is not a one stop process to dismiss an employee but should be seen as a process to assist the employee to improve their performance. If performance however does not improve this may still lead to the employee’s dismissal based on said incapacity.

Section 8 and 9 of Schedule 8 (Code of Good Practice: Dismissals) of the Labour Relations Act deals with poor work performance and provides guidelines for the handling and fair dismissal in cases of poor work performance.

Section 8 (2 – 4) clarifies that an employer should not dismiss an employee unless:
2a) The employee has been given appropriate evaluation, training, instruction, guidance or counselling.
b) After a reasonable time period for improvement has been given and an employee continues to perform unsatisfactory.
3) An investigation leading up to the dismissal should be done which includes an investigation into the reasons for the employee’s poor performance and measures short of dismissal to remedy the situation.
4) During the process the employee should have the opportunity to state their case and be heard. They may also have the assistance and be represented by a fellow employee or trade union representative.

Based on the above it is recommended that employers do a thorough investigation into an employee’s poor performance. During this investigation the employee should be given the opportunity to inform the employer of any training, tools and other resources the employer may reasonably assist with to improve the employee’s performance. It may also include the possible adjustment of targets and KPI’s.

The review period and duration thereof should be made clear to the employee. During the review period the employer should have regular meetings with the employee to ensure the employee is up to date with their targets and clearly understands what is expected of them. It is important that minutes are taken of these meetings for future reference. After the review period the employee’s performance should be reevaluated.

Should it be found that the employee has still not performed satisfactory despite reasonable assistance from the employer, the employer must first consider any possible alternatives to dismissal to remedy the situation. Alternatives to dismissals may include demotions and transfers to different positions etc. Should it be found that the employer has no viable alternatives to the dismissal of the employee, the employee may be dismissed based on their poor performance.

Employers are advised to follow the guidelines set out in Section 8 and 9 of Schedule 8 (Code of Good Practice: Dismissals) of the Labour Relations Act and to appoint suitable and experienced independent chairpersons to preside over incapacity inquiries, to ensure any dismissal resulting from such an inquiry is substantially and procedurally fair.

Invictus Group is able to assist employers with poor work performance procedures, as well as providing guidance on other employment related matters. Please contact Invictus Group on 0861 737 263 for assistance.