The employee then referred an unfair dismissal dispute to the CCMA. the employee’s poor work performance and/or incapacity; the operational requirements of the employer. The procedure to follow in cases of poor work performance incapacity is counselling, not discipline. Poor Performance. A thorough process should also identify the reasons for the poor performance. The importance of setting realistic targets for employees and providing the employees with resources to reach such targets. As a manager, it’s your job to provide your team with the right tools and guidance. The employee may be vigilant and motivated to meet the performance requirements, but simply incapable of doing so. What is Poor Work Performance? He commenced his employment on 3 January 2011. If you feel that your performance evaluation was conducted in a discriminatory manner, you should speak with an discrimination attorney who can advise you of your legal rights and any applicable laws. This counselling procedure is outlined in section 9, Schedule 8, of the Labour Relations Act. The employer must provide the employee with reasonable performance objectives, which have been clearly communicated to them. The guidelines for incapacity as a result of poor work performance will also apply in cases where an employee is not suited to his/her work because of his/her disposition or character. Performance, in law, act of doing that which is required by a contract.The effect of successful performance is to discharge the person bound to do the act from any future contractual liability. 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. 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. Poor Performance Procedures Poor Work Performance falls under the broad heading of Incapacity. Here are some common causes of poor work performance: 1. Our investment in training and development of our team is insurmountable. The law is fairly clear: An employee can be dismissed where their performance does not meet the reasonable expectations of the employer. It is true that promoting extra-mile employee performance is a multi-faceted process. Poor performance, or an unfair assessment? This case highlights a dismissal could be ruled unfair if poor performance is mistaken for misconduct. A lawyer can also advise you of whether your rights were violated and what remedies are available to you. One key reason for unnecessary delays in firing bad performers is the employer’s fear of being taken to the CCMA and being forced to reinstate the employee and/or to pay big compensation amounts. Furthermore, the employer must provide the employee with the training, guidance, support and counselling that could be reasonably expected of them. If you need to terminate an employee for poor performance, you'll need to create a simple termination letter that protects you as an employer.Since disgruntled former employees can and often do use anything you put in writing to take legal action, keep … ... there is a serious lesson in this case: Tread very carefully when considering any adverse action against an employee who’s recently exercised his or her FMLA privileges. 2. Such a warning was not given in this case. Even if an employee is held to have failed in meeting their minimum performance requirements, the employer is required to establish if there are any other alternative employment opportunities within the company that match the employee’s skill set, even if it means a demotion. This website uses cookies to remember you and improve your experience. The Commissioner found in favour of the employer, upholding the employee’s dismissal. 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”). For this reason, this is not misconduct-related poor performance, but rather a case of “incapacity”. Owen Gough . The procedures for handling poor performance are completely different from the procedures for handling misconduct. If the employer has attempted all reasonable possible alternatives, dismissal will be accepted as the only remaining option. You may face performance issues by your employer if your work is not up to scratch. This was a case which dealt with a dispute relating to the management of poor work performance. Is the employee unable to perform his or her work? Description Information sheet by the CCMA on Poor Work Performance - South African labour laws recognise that an employer may require work performance of an acceptable standard, and that employees should be protected against unfair treatment. In this case, Byrch, hereinafter referred to … opportunity. Performance appraisals can make or break your defense to a wrongful termination claim. Terminating an employee with cause for poor performance requires diligence from the employer. The employee was given a target to enrol a specified number of first year students for the year 2012. Employment Law. It is at this point that employers, on occasion, realise that the poor performance can no longer be condoned. This might explain why some employers tend to confuse poor performance with negligence, incapacity or misconduct. Employment law- Poor performance and Performance Improvement Plans What is poor performance at work? The LC reviewed the decision of the Commissioner (ie found the Employee’s dismissal was unfair). If this plan … Poor Performance results in investigation, counseling, meeting and discussion with the employee, training and so on, before dismissal is even contemplated. 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. Performance is all about how the employee does the job – i.e. If poor performance persists after a reasonable period of time, a disciplinary enquiry for poor work performance must be instituted. The concept of unfair dismissal is a right created by statute and contained in the LRA. The employer must also be able to show that the performance standards or sales targets are reasonably achievable. by putting an employee on 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. This case highlights the importance of an employer setting reasonable and achievable deliverables as well as the obligations placed on an employer to assist an employee in reaching established targets. THE TEST – LABOUR RELATIONS ACT 7. POOR WORK PERFORMANCE: WHERE DOES IT FIT IN ? Performance: A Case Study of an Oil and Gas Vendor Company in Malaysia Thiruchelvan Sinnappan A research project submitted in partial fulfilment of the requirement for the degree of Master of Business Administration Universiti Tunku Abdul Rahman Faculty of Accountancy and Management August 2017. 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