POOR PERFORMANCE IN THE WORKPLACE – What exactly does this mean?
The issue
An employee is not performing as they are supposed to. Deadlines are not met, they make mistakes, and their delivery is generally under-par and unsatisfactory. How do you deal with it, if discussions and informal expressions of dissatisfaction have not helped? What process must be followed – discipline or counselling – and is dismissal potentially on the table?
The expectation: An employer has the right to expect its employees to adequately perform the duties of their job. If they don’t, it could lead to dismissal of the employee – provided that a fair process has been followed.
The solution: There is not just one way of addressing the issue of under-performance in the South African workplace, and the statutory provisions and guidelines that must be adhered to, depend on the reason for the under-performance.
It comes down to this:
If the employee is competent and has the ability to do the work at the required standard, but does not, it is a conduct issue and a disciplinary process must be followed to determine if they are at fault. They must explain why they do not perform as required when they are capable to do so. I they cannot provide justification, then they can be blamed and penalised for this conduct. Maybe it is deliberate (e.g. not following instructions), but it does not have to be intentional – it can also be because of laziness, not paying attention, being pre-occupied, malingering, or lack of interest (negligence). Either way, this conduct would constitute fault or blameworthiness on their part and that makes it misconduct for which disciplinary action can be taken in the form of progressive warnings and/or dismissal.
If the under-performance is due to the inability of the employee to perform (all of) his/her duties as reasonably required, then it amounts to incapacity. The reason for this inability can be due to health issues; or due to incompetence (lack of skills / abilities / qualities needed to do the job properly). In such situations, there is no fault on the part of the employee and therefore a disciplinary process is inappropriate. A counselling process has to be followed in accordance with the principles in Schedule 8 of the Labour Relations Act, which could lead to their dismissal on the basis of incapacity, if unsuccessful.
The confusion
Managers and HR practitioners are often confused about the correct process to follow. ‘Poor performance’ is a term that is used interchangeably in the workplace whenever there is under-delivery, but in South African law, this phrase technically refers to incapacity in terms of the wording of Schedule 8 to the LRA. The key is to look at the reason for the under-performance, rather than what people colloquially happen to call it, to determine the process required to address it.
The Labour Court has explained the difference as follows:
In ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman NO (2013) 34 ILJ 2347 (LC):
“In my view, the distinction between poor performance and misconduct (negligence) can be established by the asking of two simple questions when it has been established that an employee indeed failed. The first question is 'Did the employee try but could not?' and the second question is 'Could the employee do it, but did not?'
In Midas Group Komatipoort v NUMSA and others [2018] ZALCJHB 83:
“It is clear ..... that the concepts of a dismissal for misconduct on the one hand, and dismissal for poor work performance (as a species of incapacity) are incompatible. This means, in short, that an employee cannot be ‘charged’ for poor performance, subjected to disciplinary process, and then dismissed applying misconduct considerations. In the case of poor performance, the process has other objectives, which can broadly be described as being to identify the poor performance, establish what is required to resolve it, providing the employee with assistance to resolve it, and then allowing the employee a reasonable opportunity to achieve what is required.”
To confuse matters further, there is sometimes an overlap or blurred lines between misconduct and incapacity where an employee's actual performance is concerned. The employee may have a genuine inability to perform certain tasks, but at the same time also simply neglects to do things that they are well able to do. In such a case, both processes could run separately but parallel against the same employee – i.e. discipline for the actions where they are at fault, and proceeding with an incapacity process relating to those failings that stem from inability. Alternatively, a manager may look at the situation holistically and decide which process is the better fit overall, and choose to focus on that.
Conclusion
In the end, the test remains fairness.
Did the employer give a struggling employee a fair opportunity and appropriate support to attain the skills to meet the expected standards and perform on par within a reasonable period? (Incapacity/Counselling); OR
Did the employer provide a capable employee who failed to meet reasonable workplace standards a fair opportunity to explain this failure and if they could not, were they given an appropriate sanction to address this? (Misconduct/Discipline)
© Judith Griessel
