PERFORMANCE MANAGEMENT and HIV/AIDS

Performance management refers to "the management of employees and how they perform in relation to the functions, duties and responsibilities of their position".

The management of performance will be determined based on the contract of employment, and in terms of the code of good practice.

Be sure you are clear as to what comprises poor performance and incapacity as opposed to misconduct.

Misconduct is bad behaviour, breaking the rules, disobedience or similar offences. Absenteeism is a form of misconduct as is wasting company stationery and insubordination.

Misconduct does not refer to the employee’s ability to perform the duties of the position and does not indicate a lack of ability or competency.

Poor performance or non-medical related incapacity refers to the employee’s ability to do the job. The employee is incapable of doing the specified work due to lack of knowledge or ability.

Example
An employee has had no computer training but is required to work with a computer. The employee lacks the skills, knowledge and/or ability to do the job.

The employee is willing to do the work but is incapable of doing it due to lack of knowledge, illness or disability.

Poor performance due to illness and/or disability is another issue. The employee is willing, but due to the nature of the illness is incapable of doing the job. The illness is having an impact on performance.

Example
John is continually absent from work due to illness. When he is at work, he is lethargic and incapable of applying himself for long periods. He often falls asleep and finds it difficult to concentrate.

In each of the above examples a rule of thumb would be
• Investigate thoroughly before taking action
• Manage the problem as it has been identified

Misconduct requires one course of action as determined by the disciplinary procedures of the company. Insubordination or the failure to carry out a lawful instruction for instance will result in disciplinary action.

Poor performance requires a slightly different approach determined by the cause of the poor performance. If the employee is capable of doing the work and training is the solution then this is how you would be required to proceed.
In each case remember that the code of good practice requires that you

• Review and assess the situation carefully
• Offer training and counselling where necessary
• Allow sufficient time for improvement
• Investigate further prior to conducting a hearing

Case study example
SACHU obo Chidi v's Roche Products.
CCMA arbitration Case No GA 1251-01

The applicant was dismissed after a disciplinary hearing, on the grounds of incapacity. The hearing held that he had failed to perform to the minimum performance standards of his position as a medical representative.

The employer contended that he had afforded the employee every opportunity to meet the required standards and that he had provided him with training.
The employee submitted that he had occupied the position for 18 months and that he had received no negative feedback on his performance before the appointment of a new manager.

Before the dismissal, the employer had invited him to meet with the HR director to discuss a position in a department that he had previously worked in. The employee declined to respond.

The commissioner held that "it is generally accepted that an employer cannot keep an incapacitated employee on indefinitely." The dismissal was substantively fair.
It could be argued that the dismissal was more suited to an incapacity rather than a misconduct dismissal.

Poor performance due to illness and incapacity will require careful consideration before action. It is essential that you consider the nature of the illness in the light of the work done by the employee.
An employee with HIV/AIDS should be treated the same as an employee with any other illness but the nature of the job and the duties of the employee will need to be considered.

An employee with HIV/AIDS working in a bakery, butchery or in a hospital where there is greater danger of transmitting the disease would require consideration in the light of the work done.
If there is a danger of transmission and the only solution is to offer alternate employment then this would be the correct course of action.
If the solution is to offer protective clothing or some other form of preventative measures then that would be correct.

Manage each case based on the cause of the problem and not the problem itself. Specific problems relating to HIV/AIDS need individual consideration. In this respect, I refer you to the individual articles on the management of absenteeism, incapacity, and productivity.

Des Squire (Managing member)
AMSI and ASSOCIATES cc
[email protected]