Incapacity in the Workplace
Do you know what to do when an employee is unable to deliver?
There is not just one way of addressing unsatisfactory performance in the workplace, but there are statutory provisions and guidelines that must be adhered to, depending on the reason for the lack of performance.
An investigation by the employer is of the utmost importance, to clearly establish the existence, nature, extent and cause of an employee's failure to deliver. [Read more here.]
It is particularly important to determine if the lack of performance is due to to the fault of the employee (misconduct, disciplinary process) or their inability to perform (incapacity, counselling process). [Read more here.]
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An Incapacity process comprises three basic steps:
(1) Reasonable attempts to get under-performance / inefficiency to the required standard for the position, within a reasonable time (factors such as seniority and professional qualifications may require only limited intervention);
(2) Failing which, viable alternatives should be considered and discussed;
(3) If this is not possible, dismissal as a last resort.
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What not to do:
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Avoiding or ignoring under-performance, is not an option.
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It is also not a solution to simply take away duties from a struggling employee and give it to someone else. Performance cannot be assessed if the employee is not actually doing the work and marginalising them in this way can backfire in a big way and lead to possible claims of harassment / victimisation / unfair labour practice (de facto demotion) or constructive dismissal.
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While informal instruction, counselling and coaching (including some ‘difficult conversations’) are usually the first steps when a potential performance problem is identified or when it is fairly minor, if an informal approach does not have the desired effect to address performance issues within a reasonable time or if the poor work performance is of a serious nature, a formal performance management process should be initiated, sooner rather than later (usually with the assistance of HR).
Our interactive online Incapacity Workshop provides in-depth guidance and information to address the various scenarios. It also deals with related issues such as Incompatibility of an employee (not fitting in, causing disharmonious work relationships); and Operational Incapacity (personal circumstances causing operational obstacles).
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Find out when our next public workshop is here.
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Our Incapacity Poor Performance Process Guideline sets out the legal requirements and recommended process flow to assist employers with resolving poor performance situations in practice.
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This document can be obtained from our Store page here.
Our e-Booklet on Ill Health Incapacity explains the rights and obligations of employers and employees when an employee is unable to deliver due to ill health or injury, and how to deal with medical information.
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This e-booklet can be viewed here.
Consultants are legal professionals with extensive practical experience in labour law and employment relations. Read more here.