Attention will be accorded to specific acts or alleged acts of misconduct involving senior employees. Download the template (compatible with Google Docs and Word Online), or read the text version below. For example, in the case of Nationwide Airlines (Pty) Ltd vs Mudau and others (2003, 3 BLLR 279) the employer dismissed Mudau after he failed a flight simulator test. As in the case of dismissals for misconduct, dismissals for poor work performance must be for a fair reason and effected in accordance with a fair procedure – ie such dismissals must be procedurally and substantively fair. The result of this uninformed action is that the employee is charged with negligence, poor performance, … 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 … Categorising incapacity. Fairness of dismissal for incapacity | Labour Guide. All Rights Reserved. The Commissioner decided that the company ought to have terminated the contract on reasonable notice and that in the circumstances, given the likelihood that the employee would not be able to find alternative employment in the week before Christmas; it should have paid her until the end of January. Proper documentation so that in the event of non-compliance the ensuing dismissal can be proved to be procedurally and substantively fair. Additionally, the performance improvement plan (PIP) you were participating in put forth specific goals and targets that you agreed to meet by their due date. FORMAL PERFORMANCE ASSESSMENT Progressively firmer steps by means of recorded counselling sessions, outlining the consequences of continued lack of improvement, such as a formal poor work performance investigation. 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. Article by: Jacques du Toit. Ill health or Injury: This is to be distinguished from disability, where an employee may be able to perform his/her duties with some adjustments to … 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. The chairperson considered that the more than 8 days she had had was adequate. It would have been fairer to apply similar standards of conduct to one class of employee as to the other unless there are sound operational reasons why this ought not to be. Poor work performance; 2.1: The probationary employee ISSUES: substantive fairness in dismissal - incapacity and poor performance – negligence in performance is only gross if it borders on reckless - summary dismissal only justified where "gravely serious misconduct" – if appeal is offered as a process it must be conducted fairly. The employee considered that she had been victimized and that she was subjected to racist treatment. Sanctions short of dismissal. RSM South Africa: Do you have a recovery plan? 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. 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. You are dismissed because, despite repeated feedback and performance coaching from your manager, your work performance has not improved. The previous Labour Appeal Court held that the substantive fairness of a dismissal based In a business where there are family members management needs to be scrupulous in avoiding actual nepotism or giving the impression that family and "friends" are being treated more favorably than others. 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. By Gary Watkins who can be contacted at www.caselaw.co.za or www.workinfo.com. Item 8(1)(j) of the Code of Good Practice: Dismissal states that dismissals for poor performance during or on the expiry of the probationary period may be based on less compelling reasons than would be required after the probationary period. Managers and HR staff often move on and the excellent documentation and the dismissal letter serve as your formal record and historical perspective. She left and he continued in her absence. The Commissioner found the appeal was unfair. Dismissal for incapacity on the basis of poor work performance. Dismissal: Incapacity. Operational requirements are de That meant a different set of requirements applied. 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. 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 South African labour legislation recognises that an employer may require work performance of an acceptable standard. During this final investigation there is a further factor that the employer has to take into account. The result of this is that they end up dismissing people for the wrong reasons or follow incorrect procedures prior to dismissal. Incapacity is also sometimes referred to as “incapability”, and a dismissal for incapacity means that an employee may be dismissed if he/she is incapable of doing the work which he / she was employed to do. 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. Poor work performance (incapacity) vs. misconduct. Despite this allowance, the principle that dismissals must be based on fair reasons still stands. The proper documentation can protect you in court if a terminated employee files an Equal Employment Opportunity Commission (EEOC) lawsuit that charges you with discrimination. You will also receive a letter that outlines the status of your benefits upon your dismissal. It’s best practice to write a termination guide. Incapacity because of ill-health differs from poor work performance because there can be no fault attributed to the employee for incapacity due to ill-health or injury. They are Unsuitability and General Incapacity which will be discussed in the near future. The easiest termination meetings are held when the prep has been done in advance. Hold this meeting as soon as you have the information, documentation, and proof necessary to fire the employee. ‘ it was impermissible for the employer to dismiss the first respondent on grounds of incapacity/poor work performance alone, as it sought to do, without first (a) conducting an investigation to establish the E reasons for the unsatisfactory performance , (b) giving the employee the right to be heard; (c) giving the employee appropriate evaluation, instruction, training, guidance and counselling, and (d) after a … 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. 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. This letter confirms your dismissal from the Ernesto Company for poor performance, effective immediately. The dismissal letter, while never easy or fun to write, is an important component of an employee termination. However, the primary objective of formal performance assessment is to allow for correction before instituting the investigation. Dismissal was an appropriate sanction for not meeting the required performance standard. In this case the manager may have many plausible reasons why the team targets were not attained, but The Covid-19 pandemic is a “ force majeure ”. - 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. She contested the validity of this warning as she had understood that the parties had agreed to ‘let bygones be bygones". Termination for this reason is generally known as dismissal for incapacity. She had short service with the company and on the undisputed evidence prospects of improving that relationship were not good. 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." It is important that one must differentiate between incapacity poor performance and ill-health or injuries. Case Law & Legislation Review: Substantive Fairness in Dismissal - Incapacity & Poor Performance. This letter confirms your dismissal from the Ernesto Company for poor performance, effective immediately. 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The incident which led to a final written warning showed that the employee may have resisted instruction from her supervisor and felt more comfortable getting colleagues to help. Their agreement to "start over" was a metaphor for an agreement to be more positive and not a negation of the history that was already "on the record". Incapacity in labour law is the non-blameworthy breach of a workplace/performance standard, i.e. The Labour Relations Act, 66 of 1995 (LRA) recognises incapacity and misconduct as grounds for dismissal. Finally, the dismissal letter provides formal documentation in the event of a lawsuit or when the HR function ceases to exist in its current format. Further to incompatibility there are two other types of incapacity besides ill health and poor work performance. Dismissals for Incapacity: Poor Work Perfomance. Your performance has been assessed many times and you have been informed about it multiple times. You will need to keep the company informed of your contact information so that we are able to provide the information you may need in the future such as your W-2 form. 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. The chairperson’s uncontested evidence suggests that the employee was unhelpful and argumentative at the hearing. Dismissal for incapacity on the basis of poor work performance. Incapacity is also sometimes referred to as “incapability”, and a dismissal for incapacity means that an employee may be dismissed if he/she is incapable of doing the work which he / she was employed to do. Obviously, this won't apply in cases of ​no-show, no-call job abandonment. Operational requirements are de You were offered resources and additional support that you refused. you have also been a part of the performance coaching by your manager. Print the letter on company stationery and have it signed by the employee's manager or the company owner. Sanctions short of dismissal. Poor work performance (incapacity) vs. misconduct. the Commissioner failed to properly conceptualise the reason for Robinson’s dismissal and thus confused issues applicable to dismissals for incapacity in the form of poor work performance (which was the reason for Robinson’s dismissal) with issues … arise out of poor work performance in a team which functions under the leadership and motivation of the manager concerned. Dismissal will be with notice as poor performance is not gross misconduct. The period should be determined by the nature of the job… 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. Proper documentation so that in the event of non-compliance the ensuing dismissal can be proved to be procedurally and substantively fair. The employer should consider alternatives to dismissal for Poor Work Performance. It is important that one must differentiate between incapacity poor performance and ill-health or injuries. factors that affected his performance. 8.1 Any person who is determining whether poor work performance justifies dismissal must consider. The LRA clearly differentiates between the reason for dismissal for poor performance and ill-health or injuries. Ø Dismissal for unsatisfactory performance or incapacity to perform is the step of last resort in the management of employee performance. When it comes to poor performance, the employer must follow a poor performance management procedure. The Applicant’s challenge to that determination is premised on the Code of Good Practice contained in Schedule 8 to the Act and in which, it is submitted, a clear distinction is drawn between dismissals for misconduct and dismissals for incapacity which, in turn, can be constituted either by poor work performance or by ill-health or injury. (iv) dismissal was an appropriate sanction for the contravention of the rule or standard. At the hearing the employee requested postponement because she had not had enough time to prepare. They are Unsuitability and General Incapacity which will be discussed in the near future. If an employer allows an appeal, a neutral person must consider it. Section 188 of the LRA recognises the fairness of dismissal for incapacity. 1. You can use this termination letter sample as a model. National Planning Commission on small business as spine of economic recovery and stimulation for post Coronavirus COVID-19 era, Tourism Minister hosts a media briefing on Lockdown Alert Level 3, Minister Mmamoloko Kubayi-Ngubane on Coronavirus COVID-19 alert level 3 tourism sector directions, « Press Release Summary – Survey reveals South Africans are dangerously under-insured, Factors Driving & Influencing Remuneration Policy », Substantive Fairness in Dismissal - Incapacity & Poor Performance. You are dismissed owing to your constant poor performance. The appeal was not successful. The LRA clearly differentiates between the reason for dismissal for poor performance and ill-health or injuries. factors that affected his performance. If the case for dismissal for cause is solid and documented well, use this letter as a sample. During the probationary period, her key performance areas were reduced. If you state the cause, you may be limited in court to only using that reason for the termination. 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. The dismissal letter documents the meeting for the employee and becomes part of the employee's personnel file. the employee is unable to comply / the lack of performance is not due to his/her fault. At common law an employer may terminate on reasonable notice unless the employee has committed a major breach of contract. 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. Into the first class fall those dismissals effected because the employee lacks the skill, knowledge or efficiency to meet the employer’s standards. When it comes to poor performance, the employer must follow a poor performance management procedure. Under most circumstances, the only recommended way to dismiss an employee is for the employee's manager and a representative from the human resources department to tell the employee about the dismissal during an in-person meeting. (c) Workplace Performance Technologies (Pty) Ltd t/a Workinfo.com. CONTENT Demonstrate an understanding of the legislation underpinning the management of poor performance, absenteeism, sick leave, incapacity and minor misconduct at the workplace. The facts were not in dispute on the third charge, and the employee said it was the first time she had done an assignment of that kind, she should have checked up the line to her supervisor. 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