Page 23 - DRG HR HANDBOOK- Nikita Pillay
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assessment of the employee’s impairment must be may be an option. Employers cannot dismiss their
conducted, and all alternatives must be exhausted. employees in circumstances that are ‘harsh, unjust or
unreasonable’.
2) INCAPACITY – DUE TO POOR
However, it is important to be fair to employees
PERFORMANCE
particularly when it comes to termination of employment.
There is no doubt that managing an employee’s They should be given reasons for dismissal and an
performance can be one of the most challenging opportunity to respond to those reasons.
parts of any manager’s role. Often by the time that the
Employers should not dismiss poor performers without
organisation’s formal performance management process
having attended to the above requirements and without
commences, difficult and unproductive behaviours
having followed proper procedure. Where the employer
are already entrenched and the relationship between
is unsure as to whether it is within its rights to dismiss
manager and employee has deteriorated. Productivity is
a poor performer, advice from a reputable labour law
low and patience is in short supply.
expert should be obtained.
WHAT ARE THE REASONS FOR POOR
4) INCAPACITY – OPERATIONAL REASONS
PERFORMANCE?
Section 213 of the LRA defines operational requirements
There are many reasons why an employee may perform
as follows: ‘“Operational Requirements” means
poorly. Some of the common reasons include:
requirements based on the economic, technological,
Employee doesn’t know what is expected because structural or similar needs of an employer.’ The
goals and/or standards or workplace policies and rationale behind operational requirements typically
consequences are not clear (or have not been set) involves measures adopted by the employer to cut
Interpersonal differences costs, improve profit, to restructure its business, or
alter the way employees work to meet an operational
There is a mismatch between an employee’s
imperative.
capabilities and the job they are required to undertake,
or the employee does not have the knowledge or skills Dismissals for operational requirements have been
to do the job expected of them categorised as ‘no fault’ dismissals. In other words,
Employee does not know whether they are doing a good it is not the employee who is responsible for the
termination of employment. Because retrenchment is
job because there is no counselling or feedback on their
a ‘no fault’ dismissal and because of its human cost,
performance
the Act places particular obligations on an employer,
WAS IT THE EMPLOYEE’S FAULT THAT most of which are directed toward ensuring that all
THE PERFORMANCE STANDARD WAS NOT possible alternatives to dismissal are explored and that
MET? the employees to be dismissed are treated fairly.
Dismissal will probably be adjudged to be unfair if the The obligations placed on an employer are both
reason for the poor performance was that: procedural and substantive.
Employer had failed to provide the employee with The purpose of consultation is to permit the parties, in
materials the form of a joint problem-solving exercise, to strive
for consensus if that is possible. The matters on which
Required training had not been given
consultation is necessary are listed in s189(2). This section
Employer’s product was not in demand or
requires the parties to attempt to reach consensus on,
Other reason beyond the employee’s control.
amongst other things, appropriate measures to avoid
3) INCAPACITY HEARING – POOR dismissals. For this to be effective, the consultation
PERFORMANCE process must commence as soon as a reduction of the
workforce, through retrenchments or redundancies, is
If an employee’s performance does not improve to an
contemplated by the employer so that alternatives
acceptable standard, termination of their employment 23
can be explored.
