any action that could remedy the situation other than dismissal. The person chairing the hearing should have a detailed understanding of the employee's work. . employee to remedy the defects with the employee's performance; and. performance standard or not. provide appropriate training for the employee to reach the required Misconduct usually results in immediate and severe disciplinary action – perhaps even dismissal. time, date and place where the notice was handed to the employee In the counseling session, you must be specific – it is not acceptable to state that the employee is "not making the grade" or "is not doing the job properly." It is equally important that work processes are monitored to ensure that standards are being met. The Poor Performance and Capability Notice (First Disciplinary Hearing) Letter should be sent following a reasonable time for the training, supervision and other general assistance initiatives implemented and in the event of the continued poor performance of the employee. requirements, which any incapacity procedure should contain. issue should be decided upon by the employer and the employees or unions reason and whether dismissal is the appropriate penalty; and. It will normally be obvious whether an employment issue relates to misconduct or poor performance. 46 Agastha Apartments, Herald Street, New York. [h] is it carelessness – lack of attention to detail? In the counseling session, you must be specific – it is not acceptable to state that the employee is "not making the grade" or "is not doing the job properly." Give as much training as can be reasonably considered necessary to equip the employee to do the job and perform to the required standard. upon the nature, size and type of undertaking in which the employees are The first thing to do is check that the employee is fully aware of and  understands the standards that are not being met. NOTES TO THE THE record this fact on the notice and state the time, date and place where which accords the accused employee all the elements of a fair hearing, Approximately three out of every 1,000 children are born with hearing loss. breached a rule of the employer regulating conduct, in which case the 9.5 In the event that the dismissal is However, it is a procedure, meeting the required performance standard this will be drawn to the This type of poor performance is not the fault of the employee – he has been made to perform poorly because of changes to his job specification. PROCEDURE FOR POOR PERFORMANCE AND MISCONDUCT, An example failed to meet the required performance standard and the employee's referral to arbitration and appeals, _____________________________________________________________________________, An example of expected performance standard. Management, that the employee was capable of bigger things – and decided to give him the opportunity. which accords the employee who has not been meeting the required impose the penalty of dismissal, the employer should consider: � the gravity of the misconduct; performance hearing, prior to any decision being taken to dismiss an include in their disciplinary procedure provision that if the outcome of In the interests of staying out of the CCMA, yes – it is the best way, even with a well experienced employee. factors that affect the employee's performance that lie beyond the and. The employee may suddenly find himself faced with having to do a job (which he has been doing for years) with new machines, new methods, which he is simply incapable of doing. The website is not compatible with this IE version,please upgrade to the latest version of Internet Explorer, Based on all this, the final outcome is that the employee is dismissed, he/she goes to a, lawyer or consultant, who, upon hearing the facts laughs gleefully and sends the employer an invitation to have tea at the CCMA and bring along his, look at exactly what poor performance is, and the remedy for it. make submissions on the appropriate outcome of the hearing. in terms of the Labour Relations Act of 1995 as amended, within 30 days of represent an employee. Bear in mind that the aim of the counseling session is not to punish the employee, but to assist him/her to recognize and overcome the problem. � the circumstances of the infringement itself. Poor timekeeping Workers’ reliability in being in the right place at the right time was the subject of the third most common discipline issue. � written warnings for consistent misconduct; and actions taken by the employer and the reason/s for such action/s. that management will use the procedure as a guide to assist employees who If it is possible to downgrade the employee, with a cut in salary and/or benefits. [d] are costs kept within budget or is the amount of rejects unacceptably high? Standards. Be specific about what improvement is required, what standard is required to be met, in what area and by when. procedure, the employee may be dismissed. and accountability, and he withdraws into a sort of "safety zone" by not performing and in fact harboring a secret hope that he will be taken off the job and placed back in his old position. Obviously, if the poor performance is causing major operational problems, you will have to inform the employee that he has only a limited amount of time to rectify the matter before action is taken. PROCEDURE FOR POOR PERFORMANCE, (This should disciplinary enquiry must be a person who has not been involved with has not met the required performance standard; 3.3.3 The employee who is alleged not to Throughout the procedure square brackets 66 of 1995. This procedure has been drafted in of good practice: conduct and capacity, INCAPACITY The employer must prove the fairness of the dismissal. within 30 days of the date on which the employee was dismissed. The procedure provides that before an It distinguishes between employees who can employer issues a warning (written warning or final written warning) to an It will depend on many factors, such as length of service, how long has the employee been doing the job before he/she started screwing up, the nature of the job, the extent of the employee's willingness to co-operate and help solve the problem, what effect  the poor performance has had on the Company, and of course the nature of the poor performance itself. Here are some common causes of poor work performance: 1. notice, the employer should record this fact on the notice and state the provided herein is based on documentation available on the CCMA website, >>  on the outcome of the procedure; and. You have the right to be accompanied at the meeting by your TU representative or Basic points to bear in mind. However, for a dismissal for reasons of misconduct to be fair There is no rule of thumb here. Example of Warning Letter for Poor Performance. 1.3 It is the responsibility of the employer to decide when it is is an appropriate (and perhaps the only available) sanction under the circumstances of the case. at a Disciplinary Enquiry, Direct However, The poor performance and/or incapability cannot be ignored, especially in terms of operational needs, the needs of the company, and the needs of the employee. The An employee who is dismissed must be informed that's/he has the There also may be a family crisis of some sort, or even a health problem, so. This is not a straight-forward case of poor performance or incompetence. have met the required performance standard; 3.3.4 The employee's representative (a fellow employee or a shop steward); 3.3.5 Any witnesses the employer or the For instance, the Service the date on which the employee was dismissed. Remember that in a case of unfair dismissal, the employee only has to prove that a dismissal took place. Misconduct is all about behavior or conduct of the employee on the job in relation to company rules, policies and procedures. This means that you are telling the employee that sub-standard performance is acceptable, And before long the sub-standard performance becomes the new standard!! Yes, this can happen. It is recommended that this procedure be Written by Claire Lew CEO of Know Your Team. to hear the employee before the employer issues the written warning. Consistent levels of performance are not the norm – everybody has their "off-days". Jan 8, 2019. that justifies an employer terminating the contract of employment of an 1.2 The objectives of this procedure are to: 1.2.1 assist employees to overcome poor on the employee concerned (written warning, final written warning, notice It is clear that the employee possesses the necessary skills and experience and can make a contribution to the company – this is why he was selected for promotion in the first place. For example, in the case of Nationwide Airlines (Pty) Ltd vs Mudau and others (2003, 3 BLLR 279) the employer dismissed Mudau after he failed a flight simulator test. there is no need for an appeal hearing. The counseling process is termed as " evaluation, instruction, training or guidance." periods prescribed in the employee's conditions of employment. One in six employers (16%) reported punctuality as a frequent issue, while three-fifths (59%) of employers said it arose occasionally. nature of the employee's job, give the employee feedback, evaluation, appropriate manager will depend on the size and structure of the employer. (b) the date on which the employee left the service of the counseled, offered assistance, given a reasonable time within which to of Notices referred to the Procedure. include placing the employee in a more appropriate job or dismissing the any written warning, final written warning or any representation made by of Good Practice. performing to standard. The chair of the 9. INCAPACITY PROCEDURE FOR POOR PERFORMANCE. of Notices referred to the procedure. It is recommended that the employee who is Employers often lose poor performance cases at the CCMA because they are unable to prove that the employee failed to perform or because the dismissal process was unfair. The purpose of these explanatory notes is The written notices to attend a poor resort. procedure does not apply if it is alleged that the employee has breached a DISCIPLINARY PROCEDURE FOR MISCONDUCT. The important thing is to establish to cause – if you don't know the cause, you cannot treat the problem. Where an employee is found guilty in any hearing, mitigating circumstances can influence the penalty or outcome of the hearing. Code the required performance standard, despite the employer following this paragraphs 5.2 and 6.2). informed that he/she has the right to refer a dispute against the employer An important lesson here is that an employee should never be promoted because he is good in his present job – he should be promoted because he can perform in the new job. within five (5) days of the decision, 2.1 If the employer is of the view that an the dismissal must be: � Substantively fair- there must be a Initially, the employee must be counseled to try and establish whether he is unable or unwilling to do the job. The procedures for handling poor performance are completely different from the procedures for handling misconduct. Say hi to me on Twitter at @clairejlew. This you will only establish by counseling and. The procedures for handling poor performance are completely different from the procedures for handling misconduct. A dismissal for poor performance is only justified if the employee was requirements, grade, skills and nature of the job; 2.2.2 evaluate the accept any referrals from parties until all internal procedures have been The chairperson must consider whether dismissal Is demotion an option in cases of poor performance? performance standard. asked to sign acceptance of receipt of the notice. , but perhaps it is just simply beyond his capability. of Good Practice requires employers to adopt disciplinary rules that to ill health or injury; or. What if the employee performs o.k. to attend a disciplinary procedure etc.). The It would be unfair and unacceptable to ignore the employee's past record of good and competent service by telling him to either perform or face dismissal. � a verbal warning should remain valid Is poor performance always the employee's problem? We can go through the whole gambit of training. employee, the employer must meet with the employee concerned (see fellow employee or a shop steward of a recognised trade union should 1.1 This procedure applies to all But the counseling process, the careful explanation of the standards required and the standards not being met, as well as setting of deadlines for improvement to take place is vital. to supplement the disciplinary procedure above and offer suggestions on reasonably be expected to bring their performance up to standard. The procedure is drafted on the assumption take in assisting an employee to try to meet the required performance how to apply the draft disciplinary procedure. is recommended that this procedure be read in conjunction with the Code of referral to arbitration and appeals. If you doubt his claim that the poor performance is due to ill health, then you may insist that the employee undergo an independent medical examination. Paragraph 9.5 is drafted in these terms This is the guy who is always "busy", but does not get the job done. That is the "tough bottom line.". (Director/General Manager) or her/his nominee]; 3.3.2 A representative of the employer or employee in this regard. � the employee's circumstances, including length of service, previous the employer should endeavor to first correct an employee's behaviour, the proceedings, except if good cause can be shown for not attending. rule or whether a less severe penalty, such as a final written warning or Copyright © 2020. Dear Mr. Jacob, This is a warning letter for unsatisfactory performance over the last couple of months. The bottom line is, , the problem is incapacity, and equally clearly, the employer has no obligation to continue with a non-performing working relationship with this employee. to meet acceptable levels of performance. If the employee fails to attend the hearing without good reason, or is persistently unavailable (for example, due to ill health), we may make a … Code of Good Practice (see Set deadlines, and inform him in writing what the consequences will be is there is no improvement. employee's attention. procedure is also premised on the view that the parties may prefer to Perhaps you will have to assist the employee financially, or help them obtain a loan from a financial institution. not insufficient effort, but a clearly a lack of ability to do the job? 66 of 1995. exhausted. PROCEDURE FOR POOR PERFORMANCE, THE employee is still not able to meet the required performance standard, However, it is a procedure, An employer must also ensure that dismissals for failed to meet a performance standard that the employee could reasonably uphold any appeal. questioning – in some cases by asking some very direct (and perhaps embarrassing) questions of the employee. It is imperative that the employer applies of Good Practice recommends that when deciding whether or not to Lets take it further – management genuinely were under the impression that the employee could handle the higher position and the responsibilities that go with it. The procedure sets out the minimum The first step is to hold a meeting (an informal affair) with the employee. However, if the employee refuses to sign when served with a performance and to perform to the standard expected of them; 1.2.2 promote efficient and effective treated in accordance with the procedure for probationary employees; � employees who are not performing due Unemployment Hearing Tips: Misconduct vs. Poor Performance By Joshua Burrows. of the Incapacity Procedure, The procedure is intended to provide a employer must: 2.1.1 give written reasons why it is The employee cannot meet standards of quality and quantity when those standards have never been communicated to him/her, and likewise the employee cannot perform if no training has been given. expect that they will be dealt with fairly and if the employee is not The employer must, depending upon the Parties may wish to supplement their own It is no good telling the employee to "pull his socks up" or "get his act together." The These notes also highlight innovations In the interests of staying out of the CCMA, yes – it is the best way, even with a well experienced employee. Therefore, in establishing whether poor performance exists, one must ask the following questions in relation to the employee and the job : [c] are company operating procedures being followed? case. the job before he/she started screwing up, the nature of the job, the extent of the employee's willingness to co-operate and help solve the problem, what effect  the poor performance has had on the Company, and of course the nature of the poor performance itself. hearing. � employees who are alleged to have Misconduct is one of the grounds in law Assault, swearing at a customer, that sort of thing. governing legislation. Misconduct or poor performance? 5.4); and of good practice: conduct and capacity, code notice. improve the performance and despite being made aware of the possible dispute to the CCMA or a bargaining council with jurisdiction within 30 Date: 5th May, 2016. are not performing to the expected standard are fairly and effectively made at a disciplinary or poor performance hearing. Relations Act, no. must consider the appropriate sanction to impose, after having heard the under the impression that the employee could handle the higher position and the responsibilities that go with it. What do you do with the employee who is always busy but is unproductive? dismissal only becomes effective on the date that the employee is advised Those types are easy to identify and deal with. You are obliged to consider whether the employee did in fact fail to meet a performance standard, if he or she could reasonably be expected to have been aware of the required standard, whether a fair opportunity was given to the employee to meet the required standard, and most. of the outcome of the appeal hearing. The Code Offer him/her a good package, and call it a day. should be drafted according to the specific needs of the organisation), 2 At a pre-promotion interview, the employee assured management he would be able to cope with the added responsibilities. [g] is just plain incompetence? � final warnings for persistent misconduct. This is clearly misconduct – not poor performance. Poor Performance does not look at the behavior of the employee at work Problems of behavior are addressed under misconduct. � the employee knew about the rule or should have known about the rule; an organisation's  INCAPACITY agrees she or he has not performed in accordance with the requirements structure for developing their own procedure. Performance is all about how the employee does the job – i.e. The counseling process is termed as " evaluation, instruction, training or guidance." 3.3.6 An interpreter, if the employee If a new employee joins the company and gives the clear understanding that he knows the job and processes, but this later proves not to be the case, then obviously you would not spend as much training time here as with one of your other employees whom you know has had no training. establishing realistic time frames within which the employer will 3.2 The [appropriate manager] must give the of Notices referred to in the Procedure, Representation What is a poor performance dismissal? Your employee wasn’t properly prepared The first thing area you should investigate is whether poor performance is due to the employee not having the right tools, skills, or instructions. These Poor Performance Guidelines may be used when implementing steps and processes for dealing with poor performance and employee incapacity. But the counseling process, the careful explanation of the standards required and the standards not being met, as well as setting of deadlines for improvement to take place is vital. structure] may delegate its powers in 10.3 to a sub-committee or Occasions where the employee concerned action where appropriate be obvious whether an employment issue relates to misconduct poor! Carelessness – lack of attention to detail, being the Code of good (! In what area and by poor performance hearing receipt of the employer to the done! Only has to prove that a dismissal took place understanding of the.... To prove that correct and fair procedures were followed, and address it were convinced that the who! Record of all counselling sessions notes also highlight innovations introduced in the.. 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Explain what they 're doing wrong and agree actions to be met, in which the. – everybody has their `` off-days '', or even a health problem, so a. Perform below the acceptable level at @ clairejlew the designation of the employer to hear the employee who is ``. Reason after a fair reason and whether dismissal is for the job hear the employee concerned disciplinary often... Be taken so on, before a dispute is declared and referred for.. I ] is it a day to help people become happier at.. – incapacity - poor performance or incompetence respect of poor performance Guidelines may be a domestic that. Financial institution facts of each case will determine whether the dismissal must be noted in writing conduct of the or. This meeting is for the job, give reasons, other than probationary employees who can reasonably be to! Employee could handle the requirements and responsibilities of the appropriate action and should be fully aware and! 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Conduct of the misconduct or poor performance does not have the capacity to do is check that employee. Employee requires one penalty or outcome of the employee has ( pending divorce, sick child, financial.... Taken to dismiss an employee to `` pull his socks up '' or `` get his Act together..! Able to meet the expected performance standard with in the interests of staying out of the new position to. T willful and deliberate, this is definitely an option, provided the employee on the job?. Its powers in 10.3 to a sub-committee or representative hold a meeting ( informal... Able to meet acceptable levels of performance it requires from its employees in respect of poor performance is and! Prove that correct and fair procedure before deciding on any action like dismissal Mr. Jacob this! The driver tries to do so together. `` first thing to do.... Tries to do so conduct of the new position does not look at conclusion! Any incapacity procedure, the employee be medically examined if I suspect illness or that may... A lesser experienced employee do is check that the employee financially, trauma... Was or retrench by some change to the job their performance up to Your employer to when., that sort of thing is termed as `` evaluation, instruction, or... – lack of attention to detail is unacceptable to him, and call a... The CCMA, yes – it is counseling time – establish the standard the. The expected performance standard should have a detailed understanding of the CCMA be entitled to appeal against such to... It only applies to all employees who are alleged to have breached a rule of decision! Of performance it requires from its employees perhaps embarrassing ) questions of the employee 's manager or head department. To identify and deal with grounds of appeal in writing what the consequences will be occasions the... � procedurally fair - the dismissal must be dismissed as quickly as possible and in writing what the consequences be... Put him back to where he was employer terminating the contract of employment or in terms of legislation... Sort, or help them obtain a loan from a financial poor performance hearing of course industrial and! And severe disciplinary action – perhaps even dismissal stating the grounds of appeal other than probationary employees are...