Dealing with poor workers

Before dismissing an employee for poor work performance or lack of skill, an assessment is essential.

Before dismissing an employee for poor work performance or lack of skill, an assessment is essential.

In the absence of an assessment it cannot be said that the dismissal of the employee is fair.

The assessment should establish the reasons for the shortcomings in the performance of the employee and formulate steps to help the employee overcome such shortcomings.

Item 9 of the Code of Good Practice on Dismissal provides that any person determining whether a dismissal for poor work performance is unfair, should consider whether or not the employee failed to meet a performance standard.

If the employee did not meet the performance standard, it must be enquired whether or not the employee was aware of the standard. It must also be enquired whether the employee was given a fair opportunity to meet the required performance standard.

It must be noted, that proving poor work performance is often a complex issue. This is particularly the case where the employee is engaged in tasks that are not capable of precise measurement.

In this instance, substantive proof will best be offered on the basis of an assessment conducted by the employer on the performance of the employee.

In the case of New Forest Farming CC vs Cachalia, the Labour Court held that normal requirements for assessment and appraisal may be dispensed with where the employee is a senior whose expertise enables him or her to judge for him or herself whether he or she is meeting the required performance standard or where the job requires a high degree of professional skill, a departure from which may be catastrophic.

In addition to highlighting the employee's shortcomings during the assessment, the employer must warn the employee of the consequences of a failure to perform well and also afford the employee a reasonable time to improve his or her performance.

As part of the outcome of the assessment, it must be shown whether the employee's performance can be improved by advice, guidance, counselling or further training. The assessment may also provide an opportunity to reflect on weaknesses in the support the employer has provided to the employee.

In Buthelezi vs Amalgamated Beverage Industries, the Labour Court held that in determining fairness the court has to weigh employment justice against the efficient operation of the business.

The whole point of a counselling session is to devise a plan to address the deficiencies of the employee's performance.

Once the employer enters into the counselling session the employer must implement remedial action and allow time to elapse to further assess whether the agreed plan is working.

In the event that it is apparent that the employee still does not meet the required standard, the employer may then be entitled to dismiss the employee.

However, in some instances it may be appropriate to consider whether the employee may be transferred to a more suitable position, even if such will amount to demotion. But the employee must accept this alternative offer in writing.

This possibility is not a given and would depend on the nature and size of the employer's enterprise or the kind of work in which the employee was engaged.

- By Lavery Modise, a director, and Sicelo Mngomezulu, an associate, at Routledge Modise in association with Eversheds.