Item 9 of the Code of Good Practice: Dismissal in Schedule 8 of the Labour Relations Act (LRA) states 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, and
- if the employee did not meet a required performance standard whether or not –
(i) the employee was aware, or could reasonably have been expected to be aware, of the required performance standard
(ii) the employee was given a fair opportunity to meet the required performance standard, and
(iii) dismissal was an appropriate sanction for not meeting the required performance standard.’
Items 8(2) and 8(3) of the abovementioned code provide that:
‘(2) … an employee should not be dismissed for unsatisfactory performance unless the employer has –
(a) given the employee appropriate evaluation, instruction, guidance, training or counselling; and
(b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.
(3) The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal to remedy the matter.’
These guidelines make it clear that employers do have the right to dismiss poor performers if they can prove factually that they have, prior to the dismissal, complied with all the substantive and procedural requirements of the law. That is, the onus at the CCMA falls entirely on the employer to bring solid proof:
- that it followed the procedural guidelines quoted above, and also that,
- regardless of the procedure followed, the dismissal decision itself was appropriate under the circumstances.
The above laws make it crystal clear that every employer must:
- draw up attainable performance targets for each and every employee
- induct every employee as to these targets, and
- keep proof that the above has been done.
The inability to set and enforce proper performance targets can be very costly for the employer. On the one hand, if the employee continually fails to perform properly because the employer has not taken corrective action then the employer’s sales or other targets will not be reached, causing losses for the employer. On the other hand, if the employer does take corrective measures and employee is unfairly dismissed the business could be crippled by the cost of the reinstatement pay or compensation that the CCMA may force it to pay.
Employers therefore need to ensure that their managers undergo intensive training by a legal expert in the setting and enforcement of performance standards in the light of the extremely dangerous legal provisions waiting to pounce on unprepared employers.