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Poor work performance (incapacity) vs. misconduct. The commissioner found, after listening to the evidence on the actual jobs on which the company complained, that the company had discharged the onus of proving on a balance of probabilities that the employee’s work performance was below expected standards, however she found that negligence is only gross if it borders on the reckless. Ill health or Injury: This is to be distinguished from disability, where an employee may be able to perform his/her duties with some adjustments to … Managers and HR staff often move on and the excellent documentation and the dismissal letter serve as your formal record and historical perspective. We dealt previously with the fairness of dismissal for misconduct, and we are now taking a look at the fairness of dismissal in cases of incapacity or poor work performance. INCAPACITY Introduction. Tips on dealing with poor work performance in the workplace. Case Law & Legislation Review: Substantive Fairness in Dismissal - Incapacity & Poor Performance, By Gary Watkins who can be contacted at www.caselaw.co.za or www.workinfo.com. The existence or otherwise of capability and fault / blameworthiness for the lack of performance on the part of the employee determines whether one is dealing with misconduct or incapacity. Incapacity because of ill-health differs from poor work performance because there can be no fault attributed to the employee for incapacity due to ill-health or injury. We dealt previously with the fairness of dismissal for misconduct, and we are now taking a look at the fairness of dismissal in cases of incapacity or poor work performance. If an employee’s misconduct is serious and if dismissal is possible, the employer needs to hold a disciplinary enquiry. We are often confronted with enquiries from clients that demonstrate that many managers are still not familiar with the difference between misconduct and incapacity. Ø Dismissal for unsatisfactory performance or incapacity to perform is the step of last resort in the management of employee performance. Section 188 of the LRA recognises the fairness of dismissal for incapacity. Dictionary.com describes “ force majeure ” as unforeseeable circumstances that prevent someone from fulfilling a contract. I Incapacity relating to poor [work] performance is prevalent where an employee has persistently failed to meet certain performance standards. arise out of poor work performance in a team which functions under the leadership and motivation of the manager concerned. An essential ingredient required to make such a dismissal fair, however, is to follow a proper dismissal process. At common law an employer may terminate on reasonable notice unless the employee has committed a major breach of contract. That meant a different set of requirements applied. If therefore your employer would otherwise have a good reason to dismiss you on capability […] Poor work performance; 2.1: The probationary employee The Labour Relations Act, 66 of 1995 (LRA) recognises incapacity and misconduct as grounds for dismissal. ‘ it was impermissible for the employer to dismiss the first respondent on grounds of incapacity/poor work performance alone, as it sought to do, without first (a) conducting an investigation to establish the E reasons for the unsatisfactory performance , (b) giving the employee the right to be heard; (c) giving the employee appropriate evaluation, instruction, training, guidance and counselling, and (d) after a … Under most circumstances, the only recommended way to dismiss an employee is for the employee's manager and a representative from the human resources department to tell the employee about the dismissal during an in-person meeting. The result of this is that they end up dismissing … ISSUES: substantive fairness in dismissal - incapacity and poor performance – negligence in performance is only gross if it borders on reckless - summary dismissal only justified where "gravely serious misconduct" – if appeal is offered as a process it must be conducted fairly. Dismissal for incapacity on the basis of poor work performance. Incapacity: Poor work performance (1) A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. Dismissal: Incapacity. Dismissal for incapacity on the basis of poor work performance. Want to Know the Best Practices for Employee Personnel Files? Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline” [Code; para.3 (3)]. The employer should consider alternatives to dismissal for Poor Work Performance. We can mail your final paycheck to your home, or you can make arrangements with your manager to pick it up. The chairperson considered that the more than 8 days she had had was adequate. SUMMARY OF JUDGMENT: Although the employee was justifiably concerned that she was unable to prepare herself properly because the nature of the evidence was technical and specific, she was not entitled to demand all the evidence before the hearing and then to walk out when she did not get it. National Planning Commission on small business as spine of economic recovery and stimulation for post Coronavirus COVID-19 era, Tourism Minister hosts a media briefing on Lockdown Alert Level 3, Minister Mmamoloko Kubayi-Ngubane on Coronavirus COVID-19 alert level 3 tourism sector directions, « Press Release Summary – Survey reveals South Africans are dangerously under-insured, Factors Driving & Influencing Remuneration Policy », Substantive Fairness in Dismissal - Incapacity & Poor Performance. The site is read by a world-wide audience and ​employment laws and regulations vary from state to state and country to country. In Ubuntu Education Fund v Paulsen NO and Others [2019] 11 BLLR 1252 (LAC), the employee was employed as a supply chain coordinator and was subject to a six month probationary period. We dealt previously with the fairness of dismissal for misconduct, and for Incapacity – Poor Work Performance, as well as dismissal based on incapacity due to ill health.. We are now taking a look at the fairness of dismissal based on operational requirements. It appears from the undisputed record of the enquiry and the chairperson’s oral evidence that he did explain to her that if she were prejudiced he would postpone the matter. You don't want to terminate for cause thinking that you have solid documentation—only to find out later that you don't. 1. Progressive Discipline in the Workplace and How It Works, How to Fire an Employee for Attendance Problems, Sample Weapons Policy to Put in an Employee Handbook, How to Confirm a Person's Employment Status, Gearing Up for Layoffs? Article by: Jacques du Toit. He only knows that what is happening is unacceptable to him, and the employee must be dismissed as quickly as possible. Schedule 8 to the LRA also provides guidelines in relation to the different procedures that have to be followed in the case of incapacity due to poor performance and misconduct respectively. Dismissal for poor work performance (Incapacity) and misconduct are by definition two distinct and diverse concepts. The employee was handed a notice of disciplinary hearing for gross negligence in performance. The employee considered that she had been victimized and that she was subjected to racist treatment. Sample Dismissal Letter for an Employee's Poor Performance, Check Your Documentation Before Employee Dismissal, Before You Send an Employment Dismissal Letter, Sample Employee Letter of Dismissal (Text Version), Conclusions and Final Thoughts About a Dismissal Letter, Use These Samples to Write a Formal Employee Reprimand Letter, Sample Employment Termination Letters to Fire an Employee for Cause, Learn How to Write a Termination Letter With These Samples, You'll Want to Confirm Employment Termination With a Letter. But sometimes, the constant poor performance of an employee hampers this progress. It declared that, at the outset, the matter must be decided on the characterisation of the dismissal as one for incapacity (poor work performance) and not one of misconduct. 8.1 Any person who is determining whether poor work performance justifies dismissal must consider. – Any person determining whether a dismissal for poor work performance is unfair should consider – Obviously, this won't apply in cases of ​no-show, no-call job abandonment. A dismissal for poor performance is only justified if the employee was counseled, offered assistance, given a reasonable time within which to improve the performance and despite being made … There seems to be a lack of understanding of the clear distinctions that separate the various conditions – in other words, the employer does not know what the charge should be. Generally, an employer cannot justifiably conclude that dismissal is necessary if the employee could conceivably have met the required standard within a reasonable period. If you state the cause, you may be limited in court to only using that reason for the termination. The Applicant’s challenge to that determination is premised on the Code of Good Practice contained in Schedule 8 to the Act and in which, it is submitted, a clear distinction is drawn between dismissals for misconduct and dismissals for incapacity which, in turn, can be constituted either by poor work performance or by ill-health or injury. Should Employers embark on incapacity enquiries for poor work performance amidst the Covid-19 pandemic? She left and he continued in her absence. You turned in your company badge and smartphone at the time of your dismissal, so we have accounted for all company-owned items. You may feel sorry for the employee, be sorry you hired them, or sorry they didn’t work out — but apologies infer you are sorry they’re being fired which undermines your position. Fairness of dismissal for incapacity | Labour Guide. Disclaimer: Please note that the information provided, while authoritative, is not guaranteed for accuracy and legality. Dismissals for incapacity are divided into two classes. Need a Sample Termination Letter to Fire an Employee? This letter confirms your dismissal from the Ernesto Company for poor performance, effective immediately. The Commissioner decided that the company ought to have terminated the contract on reasonable notice and that in the circumstances, given the likelihood that the employee would not be able to find alternative employment in the week before Christmas; it should have paid her until the end of January. In Ubuntu Education Fund v Paulsen NO and Others [2019] 11 BLLR 1252 (LAC), the employee was employed as a supply chain coordinator and was subject to a six month probationary period. These dismissals are classified as dismissals for poor work performance. 8.1.1 whether the employee failed to meet performance standards; 8.1.2 whether the employee was aware, or could reasonable be expected to have been aware, of the required performance standards; The dismissal letter documents the meeting for the employee and becomes part of the employee's personnel file. The employee had not realised how strict the standards would be and there is at least the suspicion that if she had not been so aggressive and resentful of authority the company might well not have held a formal enquiry back in July. The procedure to follow in cases of poor work performance incapacity is counselling, not discipline. You were offered resources and additional support that you refused. Into the first class fall those dismissals effected because the employee lacks the skill, knowledge or efficiency to meet the employer’s standards. You will need to keep the company informed of your contact information so that we are able to provide the information you may need in the future such as your W-2 form. This information is for guidance, ideas, and assistance. This letter confirms your dismissal from the Ernesto Company for poor performance, effective immediately. If an employer allows an appeal, a neutral person must consider it. ... namely Poor Work Performance and Ill Health or Injury. The result of this uninformed action is that the employee is charged with negligence, poor performance, … June 03, 2019. During this final investigation there is a further factor that the employer has to take into account. Print the letter on company stationery and have it signed by the employee's manager or the company owner. She tendered no convincing factual basis for her claim that her employer was racist, or that there was a conspiracy to get rid of her. It also be described as incompetence, lack of skill knowledge, Incompatibility, bad attitude, Carelessness, in accuracy, incomplete work, poor social schools, and failure to comply with reasonable standards. As a consequence, your dismissal is the result of your refusal to meet the core requirements of your job. Proper documentation so that in the event of non-compliance the ensuing dismissal can be proved to be procedurally and substantively fair. Sanctions short of dismissal. During the probationary period, her key performance areas were reduced. It would have been fairer to apply similar standards of conduct to one class of employee as to the other unless there are sound operational reasons why this ought not to be. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. We dealt previously with the fairness of dismissal for misconduct, and for Incapacity – Poor Work Performance, as well as dismissal based on incapacity due to ill health.. We are now taking a look at the fairness of dismissal based on operational requirements. Please note that laws regarding the final paycheck may vary from state to state and country to country. It is important that one must differentiate between incapacity poor performance and ill-health or injuries. Payment for your accrued vacation days and sick days will be included in your final paycheck* which you will receive on your regular payday, Friday. The letter will include information about your eligibility for the Consolidated Omnibus Budget Reconciliation Act (COBRA) continuation of group health coverage. All Rights Reserved. If an employee’s misconduct is serious and if dismissal is possible, the employer needs to hold a disciplinary enquiry. Guidelines in cases of dismissal for poor work performance Any person determining whether a dismissal for poor work performance is unfair should consider- ... Incapacity: Ill health and injury. Your performance has been documented in three letters of reprimand which you read and signed. Guidelines in cases of dismissal for poor work performance. You are dismissed because, despite repeated feedback and performance coaching from your manager, your work performance has not improved. Susan Heathfield is an HR and management consultant with an MS degree. you have also been a part of the performance coaching by your manager. Schedule 8 to the LRA also provides guidelines in relation to the different procedures that have to be followed in the case of incapacity due to poor performance and misconduct respectively. They are Unsuitability and General Incapacity which will be discussed in the near future. You are dismissed because, despite repeated feedback and performance coaching from your manager, your work performance has not improved. The LRA clearly differentiates between the reason for dismissal for poor performance and ill-health or injuries. The 5 steps PRIOR TO dismissal for incapacity: Ill health / injury NB: Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. ISSUES: substantive fairness in dismissal - incapacity and poor performance – negligence in performance is only gross if it borders on reckless - summary dismissal only justified where "gravely serious misconduct" – if appeal is offered as a process it must be conducted fairly. An important factor is that the capacity or incapacity of the employee refers to past performance, and not to an " inability to meet an entry-level requirement for a new or a redesigned job." On the question of the privacy of disciplinary measures the company ought to inform employees of its approach to standards of conduct and performance even if this is only in a general way so that the staff knows what they are up against. The period should be determined by the nature of the job… You will also receive a letter that outlines the status of your benefits upon your dismissal. He could not possibly have been independent or neutral on hearing the appeal. POOR PERFORMANCE The Labour Relations Act, recognises three types of dismissal, namely: - Misconduct - Operational requirements (retrenchment) - Incapacity (ill health, injury, poor performance) Schedule 8 of the Labour Relations Act lays down the following Code of Good Practice when dealing with poor performance;- “9. What not to say when you’re terminating an employee for poor performance Don’t apologize. CEO Dispute Resolution Official – Bethlehem 8. The LRA clearly differentiates between the reason for dismissal for poor performance and ill-health or injuries. The employee claimed that she had not been given enough particulars for preparation, but the chairperson refused postponement and she left the proceedings. It was common cause that there were some performance problems but instead of conceding these and making efforts to improve and align her work performance to the company’s expectations the employee was suspicious and accused the employer of bad faith. If the employee's manager has kept performance documentation, have your human resources staff check the documentation to make sure it is dated and will pass legal muster. Termination for this reason is generally known as dismissal for incapacity. You can use this termination letter sample as a model. Incapacity in labour law is the non-blameworthy breach of a workplace/performance standard, i.e. In the second place, the issue of procedural and substantive fairness for incapacity in relation to both poor work performance and ill-health will be covered. ... namely Poor Work Performance and Ill Health or Injury. 8. You are dismissed owing to your constant poor performance. Dismissal was an appropriate sanction for not meeting the required performance standard. During this final investigation there is a further factor that the employer has to take into account. The Labour Relations Act, 66 of 1995 (LRA) recognises incapacity and misconduct as grounds for dismissal. Download the template (compatible with Google Docs and Word Online), or read the text version below. It is important that one must differentiate between incapacity poor performance and ill-health or injuries. Dismissing an employee for poor performance has its own particular challenges and relies on good communication with the employee and thorough planning to be successful. In this case the manager may have many plausible reasons why the team targets were not attained, but CONTENT. Since disgruntled former employees can and often do use anything you put in writing to take legal action, keep the letter simple and don't state a reason for the termination. The dismissal letter, while never easy or fun to write, is an important component of an employee termination. The facts were not in dispute on the third charge, and the employee said it was the first time she had done an assignment of that kind, she should have checked up the line to her supervisor. They are Unsuitability and General Incapacity which will be discussed in the near future. However, the primary objective of formal performance assessment is to allow for correction before instituting the investigation. Here Are Rejection Letter Samples to Send to Unsuccessful Applicants, answers the employee's most obvious questions. Proper documentation so that in the event of non-compliance the ensuing dismissal can be proved to be procedurally and substantively fair. South African labour legislation recognises that an employer may require work performance of an acceptable standard. the employee is unable to comply / the lack of performance is not due to his/her fault. CEO Dispute Resolution Official – Bethlehem How to terminate an employee for poor performance You’ll want to be prepared with as much documentation and paperwork as possible. In situations where the employee is not at fault you will be required to help the employee stay in employment if this is at all reasonably possible. SUMMARY OF EVIDENCE: The employee was employed as a DTP operator for the Company in April 2002. Case Law & Legislation Review: Substantive Fairness in Dismissal - Incapacity & Poor Performance. t Use this sample dismissal letter as a guide, but as in all situations that can result in legal action or other events that are not in an employer's best interests, run your letter by your employment law attorney before you send it to the employee. We are now taking a look at the fairness of dismissal in cases of incapacity based on ill health. Your lack of performance at work, or “capability” as it it known under employment legislation, is something that can trigger a dismissal. Termination Letter for Poor Performance: The success of an organization depends on the commitment and performance of its employees.Hard work and dedication takes the organization to success. The employer should consider alternatives to dismissal for Poor Work Performance. Poor work performance (incapacity) vs. misconduct. Article by: Jacques du Toit. In a business where there are family members management needs to be scrupulous in avoiding actual nepotism or giving the impression that family and "friends" are being treated more favorably than others. By Gary Watkins who can be contacted at www.caselaw.co.za or www.workinfo.com. The commissioner said that she did not consider that the employee had made out a case that the chairperson did not consider the material properly and that he did not exercise an independent judgment although the commissioner agreed that his reasons were somewhat skimpy, however this did not make the hearing unfair. Dismissal for Alleged Incapacity: POOR WORK PERFORMANCE This checklist has been prepared having regard to the CCMA Arbitration Guidelines, the Code of Good Practice: Dismissal and relevant case law v34 Go to www.purshotam.co.za for an updated version of this document plus many more aids NB: The law does NOT require that each and every Further to incompatibility there are two other types of incapacity besides ill health and poor work performance. You failed to meet the target dates in any of the areas specified within the plan that you and your manager wrote and agreed to together. FORMAL PERFORMANCE ASSESSMENT Progressively firmer steps by means of recorded counselling sessions, outlining the consequences of continued lack of improvement, such as a formal poor work performance investigation. This was so awarded. The employee should also be given the opportunity to give evidence in mitigation, i.e. 1. Please enable the javascript to submit this form. The proper documentation can protect you in court if a terminated employee files an Equal Employment Opportunity Commission (EEOC) lawsuit that charges you with discrimination. 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. Because poor performance and misconduct differ, the procedures for dealing with them are also different. Once it has been established that an employee has failed to meet a required performance standard in the workplace, the employer has taken the necessary remedial action to mitigate as far as possible the causes of the incapacity, and after a reasonable time period the employee has not shown sufficient progress, certain procedural steps need to be followed before an employer can fairly dismiss … (iv) dismissal was an appropriate sanction for the contravention of the rule or standard. Evidence of the employee’s poor performance (such as examples of inadequate work, or complaints by customers or colleagues) should be retained and shared with the employee at each stage of the process. 8.1.1 whether the employee failed to meet performance standards; 8.1.2 whether the employee was aware, or could reasonable be expected to have been aware, of the required performance standards; However, the primary objective of formal performance assessment is to allow for correction before instituting the investigation. There were 3 charges. The procedure for dismissals for poor work performance requires that the employee should be counselled, monitored and offered assistance before the contract is terminated. Fairness of dismissal for Operational Requirements | Labour Guide We dealt previously with the fairness of dismissal for misconduct, and for Incapacity – Poor Work Performance, as well as dismissal based on incapacity due to ill health.. We are now taking a look at the … (1998) 7 ARB 6.9.5, NEHAWU v University of Cape Town and Fry’s Metals (Pty) Ltd v NUMSA, The University Of The North v Franks & others, CCMA’S OPERATIONS DURING THE COVID-19 PANDEMIC. She received a written warning for poor performance in July which was valid for 12 months. Despite this allowance, the principle that dismissals must be based on fair reasons still stands. The Covid-19 pandemic is a “ force majeure ”. At the hearing the employee requested postponement because she had not had enough time to prepare. Item 8(1)(j) of the Code of Good Practice: Dismissal states that dismissals for poor performance during or on the expiry of the probationary period may be based on less compelling reasons than would be required after the probationary period. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. During the probationary period, her key performance areas were reduced. requirements for a fair dismissal for misconduct will be considered. Send a dismissal letter to the employee after the termination meeting with return receipt requested, or hand the dismissal letter to the employee at the end of the meeting. factors that affected his performance. This letter confirms your dismissal from the Ernesto Company for poor performance, effective immediately. She resented criticism and dubbed it as interference The commissioner considered that the company had adequate grounds to terminate services for poor performance exacerbated by a breakdown in the employment relationship. Before she left the chairperson warned her that he would continue in her absence. The chairperson’s uncontested evidence suggests that the employee was unhelpful and argumentative at the hearing. Attention will be accorded to specific acts or alleged acts of misconduct involving senior employees. She contested the validity of this warning as she had understood that the parties had agreed to ‘let bygones be bygones". Dismissals for Incapacity: Poor Work Perfomance. FORMAL PERFORMANCE ASSESSMENT Progressively firmer steps by means of recorded counselling sessions, outlining the consequences of continued lack of improvement, such as a formal poor work performance investigation. Incapacity because of ill-health differs from poor work performance because there can be no fault attributed to the employee for incapacity due to ill-health or injury. When it comes to poor performance, the employer must follow a poor performance management procedure. Your performance has been documented in three letters of reprimand which you read and However, although the employer had had sufficient valid cause to terminate the contract the commissioner said that he did not consider summary dismissal justified. Dismissals for Incapacity can be divided into two categories: Ill health or injury and Poor Work Performance. He reviewed the 3 jobs on which there were errors and considered that there were adequate grounds to find that the employee was negligent and therefore to terminate services and he recommended summary dismissal. The employee did not challenge the chairperson on this evidence of his conduct of the hearing, nor did she put to him her allegation that he had prejudged the matter. Because poor performance and misconduct differ, the procedures for dealing with them are also different. Here the customer had already signed off on the project so there did not appear to be a reckless neglect amounting to gross negligence. It’s best practice to write a termination guide. Please seek legal assistance, or assistance from State, Federal, or International governmental resources, to make certain your legal interpretation and decisions are correct for your location. The commissioner found that her work amounted to poor performance but not gross negligence. She had short service with the company and on the undisputed evidence prospects of improving that relationship were not good. 2. Their agreement to "start over" was a metaphor for an agreement to be more positive and not a negation of the history that was already "on the record". Since 2000 law is the result of your dismissal from the Ernesto company for poor work.. Is a further factor that the duty on the employer must follow a proper dismissal.. Amounted to poor performance but not gross negligence dismissals are classified as for..., not discipline dismissal incapacity poor work performance went easy on her cause, you may be limited court! Consolidated Omnibus Budget Reconciliation Act ( COBRA ) continuation of group health coverage a world-wide audience and ​employment laws regulations. 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