by Ivan Israelstam
Many employers fire poor performers hastily while others wait too long before taking strong action. One reason for unnecessary delays in firing bad performers is the employer fears being taken to the CCMA and forced to reinstate the employee and/or to pay compensation.
Part of the solution to this nagging problem is for you to understand how the law judges dismissals for poor performance:
- Item 9 of the Code of Good Practice: Dismissal in Schedule 8 of the Labour Relations Act (LRA) says that when someone (for convenience sake, let’s call him John) has to decide if the dismissal of another (again, to make life easier, let’s call him Mark), because of poor work performance, is unfair, the following needs to be considered:
– Did Mark meet the required performance standard?
– If he did, did he know (or was he reasonably expected to know) about the standard? Was he given a fair opportunity to meet the standard? Was dismissal an appropriate sanction for not meeting the standard?
- Items 8(2) and 8(3) of the code say that:
– Employees must not be dismissed for poor performance unless the employer has evaluated, instructed, guided, trained or counseled the employee. If, after an appropriate amount of time, he’s still performing poorly, the dismissal procedure may be instituted against the employee. However, this procedure must include an investigation into why the employee was performing poorly.
– The employer must consider any means (not dismissal) to remedy the situation.
These guidelines make it clear that you have the right to dismiss poor performers. However, before you can do this, you must factually prove you have, before dismissal, complied with all the substantive and procedural requirements of the law.
This means that at the CCMA, the onus falls entirely on you to bring solid proof that:
- You followed procedural guidelines, and
- Regardless of the procedure followed, the dismissal decision itself was appropriate under the circumstances.
In the case of White vs Medpro Pharmaceuticals (Pty) Ltd (2000, 10 BALR 1182):
- White, the employee, was dismissed for consistently not meeting her sales targets.
- Her employer, Medpro, justified their decision to dismiss White by stating that meeting sales targets was one of White’s main performance areas.
- Medpro also alleged that, if White had made the targeted number of client calls, she would’ve achieved her sales targets. However, the company brought no proof of its allegations and didn’t prove that its decision to dismiss was fair.
- The arbitrator held that it was Medpro’s responsibility to prove the performance standards set were applied fairly. As the company didn’t do this, the arbitrator found the dismissal to be both procedurally and substantively unfair.
In Robinson vs Sun Couriers (2003, 1 BALR 97):
- The CCMA commissioner blamed the employer because the employee didn’t meet the required sales targets and reinstated the unfairly dismissed employee.
- While the targets set may have been reasonable, the arbitrator held that the employer has a responsibility to assist the employee to achieve.
In Duff vs McGregor (Pty) Ltd (2004, 1 BALR 21):
- The arbitrator blamed the employer for the employee’s poor sales performance because the employer couldn’t prove that the targets set were reachable.
- Again the dismissal for poor performance was found to be both substantively and procedurally unfair.
The above laws and findings make it crystal clear that every employer must:
1. Draw up realistic performance targets for each and every employee,
2. Make sure that every employee understands his targets, and
3. Keep proof that points 1 and 2 have been done.
You could be paying through your nose if you don’t set and enforce KPIs
On the one hand, if your employee continually fails to perform properly because you haven’t taken corrective action then your sales or other targets won’t be reached, which will cause you losses. On the other hand, if you to take corrective measures and dismiss the employee, your business could be crippled by the cost of the reinstatement pay or compensation awarded by the CCMA.
This article was first published on HR Pulse.