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In this series of articles, we unpack practical pointers for employers as a trouble shooting guide, based on frequently seen problems and questions raised by employers.

Below is some advice to consider regarding implementing a performance improvement process to manage a poor performing employee:

1. The first step is to determine whether the employer is dealing with misconduct or incapacity.  Employees who commit misconduct by not complying with rules, policies or procedures are at fault and can be held accountable for their actions.  In the case of incapacity, the employee is willing to do what is required but is not able to do so and thus cannot be held responsible for his or her actions.

2. The importance of the above distinction lies in what pre-dismissal procedure to follow.  In the case of misconduct, the employer will initiate either formal or informal disciplinary action depending on the severity of the offence.  In the case of incapacity, the employer must follow a counselling process, the elements of which we unpack below.

3. As far as substantive fairness is concerned, an employer has the right to prescribe the standards of performance required of its employees.  Performance standards must be measurable, specific and reasonably attainable.

4. The Code of Good Practice: Dismissal sets out guidelines for a fair procedure where the employer is dealing with the poor work performance of an employee.  The Code requires a proper investigation, by way of a counselling process, which is aimed at evaluating the employee; the reasons for the poor work performance and the ways and means to overcome the problem, including any assistance guidance and training which can be given by the employer.

5. The counselling process is a collaborative process to actively assist the employee to solve the underlying problem(s) which are contributing to or causing the under-performance.

6. The counselling process takes place over the review period, which must be reasonable in relation to the nature of the employee’s role and if possible, linked to any time framed performance deliverables.

7. The employee must be informed of the consequences of his or her failure to improve and, in particular, he or she should be warned about possible dismissal.  This is not a disciplinary warning.  It is the giving of a reasonable, last opportunity to improve performance coupled with notice of how seriously the employer now regards the situation.

8. If the employee’s progress is unsatisfactory after the expiry of the review period, the employer must convene a formal incapacity (poor performance) hearing.

Should you require any more information on the subject, please contact our partner Melanie Hart at melanie@bv-inc.co.za. Part 4 of the series will address retrenchments and restructuring the workplace.