It is no surprise that the Covid19 pandemic in 2020 had placed tremendous pressure on business to survive. It also renewed business’s focus on efficiency and productivity. As such, more and more business owners are confronted with the phenomenon of poor performance. Unfortunately, poor performance is tricky to address. The Labour Relations Act allows an employer to effectively dismiss any employee that does not perform to the relevant standard. However, as with any dismissal, the process must be both procedurally and substantively fair towards the employee. This is usually easier said than done. Although a hard and fast rule for such processes does not exist, there are several ways which is deemed ‘best practice‘ in dealing with such matters. Below is a set of guidelines to assist in keeping the procedure as fair as possible:
COUNSELLING / WARNINGS:
Counselling is a process in which the employer (or management) is actively involved in trying to identify the underlying reason for the employee’s failure to achieve a set working standard. The employer would only be expected to do what is reasonable and fair in identifying these underlying factors. It is during this process that it must be determined if the poor performance is due to misconduct (i.e., laziness, absence, or loafing) or due to incapacity (i.e., an inability to perform or lack of training). If the poor performance is due to misconduct, the standard disciplinary steps should be taken. On the other hand, if the poor performance is due to incapacity, the parties should attempt to identify the underlying factors.
Through the identification of these factors, both the employee and employer must actively attempt to find ways to ensure that the required standards are met. It must be noted that this is merely the first step, and the number of counselling sessions depend on the respective circumstances of each case. It is also strongly advised that adequate record be kept of each counselling session.
Through these counselling sessions, the employee must be notified of their substandard performance. As with all labour related matters, the employee must be given a fair opportunity to explain the reasons for their underperformance. It is extremely important to provide a fair platform for the employee to air their views, as it plays a critical part in determining the underlying issues. The employee should also be encouraged to provide possible solutions to reach the expected performance standard.
The main goal of the counselling session should not only be to identify the underlying issues, but to get both parties to agree on the steps required to resolve the problem. However, at times, the respective parties may be at odds as to what would constitute the best course of action to resolve the poor performance. In such a case, where no agreement can be reached, the employer has the right to set reasonable and fair steps (or requirements) to resolve the problem. It is critical that the employer allow for a reasonable time-period in which the employee should show improvement. This time-period may vary, depending on the nature of the underlying issue. The employee should also be notified as to the consequences of not achieving the set standard, i.e., warning or hearing pending a dismissal.
Depending on the nature of the poor performance, it is usually the best protocol to have follow-up meetings to evaluate the employee’s performance and to determine if there is any improvement. If there is insufficient improvement, an appropriate action should be decided upon. It is usually more appropriate to issue warnings before taking the employee to an incapacity hearing. However, each case must be weighed on its own merits.
INCAPACITY HEARING
If the employer had provided the employee with the required steps to improve, and had provided sufficient time for improvement, and still the employee repeatedly failed to show any significant improvement, the employer may take the employee to an incapacity hearing.
During this process, the employee must be given a fair opportunity to make representations as to why the employer should not terminate his/her employment contract. The employer should actively consider the representations before making a final decision. In deciding the fate of the employee, the facilitator of the hearing would consider the following factors, before deciding:
- Whether or not the employee failed to meet a performance standard.
- Whether or not it can reasonably be expected that the employee was aware of their failure to meet a performance standard.
- Whether or not the employee was given a fair opportunity to improve and meet the required performance standard.
- The mitigating factors which could play a role for each respective employee.
When all of the above has been considered, a decision of dismissal could be rendered. However, it is important to note that a decision of dismissal should only be used as a last resort.
