While the law allows employers to decide what the proper standards of performance are, the employer will, if taken to the CCMA, be required to prove the fairness of the dismissal.
Employers must therefore ensure that their performance management systems and practices are designed to enable the employer to prove at arbitration that:
• The employee knew what the required performance standard was;
• The standard was realistically achievable;
• The employee was given sufficient opportunity to achieve the standard; and
• It was the employee’s fault that he/she failed to achieve the standard.
How must the employer’s systems be geared to provide legal proof in these four areas?
Did the employee know what the performance standard was?
The employee’s signed employment contract or performance agreement must spell out that, for example, that he/she is required to make 10 sales per month, reach 2 million rand turnover per year, pack 100 boxes per month or make 3 widgets per hour.
Was the standard achievable?
The employer’s formal records of actual past performance of the employee and others who have done the same work must clearly show that the agreed standard (e.g. 10 sales per month) has regularly been achieved and that therefore the standard is achievable and fair.
In the case of White vs Medpro Pharmaceutica (2000, 10 BALR 1182) the employee failed to meet her targets in nine out of ten months. The CCMA nevertheless found her dismissal to be unfair because the employer had set targets that were not achievable in the CCMA’s view.
Has the employee been given sufficient opportunity to achieve the standard?
The employer’s records relating to the employee’s performance must clearly show that, for example, the employee:
a) Has been given sufficient work to do to provide the necessary practice to become proficient
b) Has the time to get the work done properly.
Was it the employee’s fault that the performance standard was not met?
The employer’s performance monitoring records must show that:
• The employer has consistently provided the employee with the necessary work materials, training and equipment;
• The market demand for employer’s product has not reduced; or
• That there were no other reasons beyond the employee’s control for the employee’s poor work performance.
In Robinson vs Sun Couriers (2003, 1 BALR 97) the CCMA found Robinson’s dismissal to be unfair because the employer had neither established the reason for the poor performance nor brought any proof that the poor performance was the employee’s fault.
Employers must therefore be able to prove that they have:
• Set targets that are provably reasonable;
• Adjusted targets when new circumstances dictate this;
• Given employees a real chance to achieve the desired performance level; and
• Removed all obstructions to the achievement of the standards.
Thus the format of a good performance control system would be as follows:
• Details of the quantity, quality and time frame requirements of each employee;
• Proof that these standards have been achieved regularly;
• The nature of the specific tasks that the employee has been given during each performance period, the number of hours that the employee has been given to perform those tasks;
• The availability to the employee of all resources in good order needed for successful completion of the work; and
• The contact details of a reputable expert in labour law and performance management.
By Ivan Israelstam, chief executive of Labour Law Management Consulting