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Many organisations incorporate performance management systems, of varying degrees or complexity, to help generate top-notch team and individual employee performance. The concept of unfair dismissal is a right created by statute and contained in the LRA. That is, poor work performance relates to how badly the employee has performed work or missed deadlines. Date: 30 July 2012. The Employee queried the above target on the basis that it was based on unrealistic numbers and that by implication the targets were unrealistic / unachievable. In Standard Bank of SA v CCMA (2008) 4 BLLR 356 (LC), the Labour Court reiterated the Labour Relations Act Schedule 8 requirements and concluded that employers before dismissing an employee, for (poor work performance) incapacity, must adopt the following four-stage inquiry: Put differently, employees have rights in this process. To begin with, poor performance which was avoidable amounts to an act of misconduct which can be addressed by way of a disciplinary procedure. On the other hand, there may be no blameworthiness whatsoever on the part of the employee with regard to their poor performance. ... this assumes that there is genuinely poor performance. I suggest that you make an appointment with specialist in labour law to discuss your situation and to obtain advice. To find out more see our Privacy Policy. There are exceptions in the case of senior employees or managers and where the degree of skill is so high that one slip in performance has disastrous consequences for the employer. The starting point in law is to determine if the employee can be held blameworthy for the poor performance because sometimes they can, but other times, they cannot be. N.Y.) In the case, a housing complex refused to promote an apprentice mechanic with ADHD to a permanent job and ended up firing the apprentice. the employee’s poor work performance and/or incapacity; the operational requirements of the employer. When you choose us, you will be joining an exceptional family of lawyers. Despite the settled rule that workers cannot be fired based solely on their age, age discrimination can be difficult to prove because other factors, such as poor job performance, are often present. If so, the employee must be offered that position with the understanding that the employee is at liberty to accept or decline the offer of alternative employment. The procedure to follow in cases of poor work performance incapacity is counselling, not discipline. Can the employee’s work circumstances be adapted? Click on the link if you’ like to more information on Werksmans expertise in the Labour & Employment sector. The background to this case, as described in the judgment, was that “the respondent employees failed to achieve the performance targets between September 2016 and January 2017. The importance of setting realistic targets for employees and providing the employees with resources to reach such targets. POOR WORK PERFORMANCE by MOKUMO MF Mini-Dissertation submitted in partial fulfilment for the requirement of the degree of Masters of Law in Labour Law In the Faculty of Management and Law School of Law At UNIVERSITY OF LIMPOPO (Turfloop Campus) SUPERVISOR: TC MALOKA 2012. a ... FOR POOR WORK PERFORMANCE I. The most common claim arising from the management of poor performance is an unfair dismissal claim from an employee with more than one year's service who is dismissed on grounds of incapability. This might explain why some employers tend to confuse poor performance with negligence, incapacity or misconduct. These are: • Conduct • Capability • Redundancy • Statutory ban • Some other substantial reason. If not, to what extent is the employee capable of working? In deciding whether this obligation had been met regard must be had to the applicable provisions of the Labour Relations Act 66 of 1995 (“LRA”) as well as the Code of Good Practice: Dismissal (“Dismissal”). During this process, the employer should identify all of the key evidence to support the allegation. Many employers fire poor performers prematurely while others wait too long before taking strong action. Word Index & Definitions; Case Law; Bulletin; Questions & Answers ; Templates & Resources; Our Experts; See all chapters 1300 782 911 Home How to counsel an employee for poor performance. In cases involving poor work performance, the extent of attempts made by the employer to assist the employee is critical to evaluating whether dismissal is the appropriate solution. But serious errors are not an automatic reason to dismiss. Should they decline the offer, the employer would be entitled to dismiss the employee on grounds of poor performance if section 9 of Schedule 8 of the Labour Relations Act has been complied with. Performance appraisals can make or break your defense to a wrongful termination claim. If they were suspended, then confirm they should return to work. The employee then referred an unfair dismissal dispute to the CCMA. Managing poor performance is not a form of discipline and should not make the employee feel like they have done something wrong. I said that good planning and effective communication are important. On 25 January 2012 the employer issued a letter to the employee registering its dissatisfaction. This counselling procedure is outlined in section 9, Schedule 8, of the Labour Relations Act. The Commissioner found in favour of the employer, upholding the employee’s dismissal. Use Black Friday to kickstart a new career, Everything you need to know about SA’s unemployment rate, EMPLOYERS ARE NOT PROTECTED BY THE CORPORATE VEIL. In the Brooklyn case, the employer apparently concluded that ADHD was too big a liability, even though there was plenty of evidence that the worker could do the job. In some cases, the legal aspects are relevant when application of your appraisal is off base or just doesn't exist. Identifying which of these two categories the poor performance falls into upfront is critical, as it determines which procedure must be followed. However, an employer seeking to dismiss an employee as a result of poor performance will be required to show that they made reasonable efforts to work with the employee before making the decision to dismiss. This website uses cookies to remember you and improve your experience. 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