By Ivan Israelstam, chief executive of Labour Law Management Consulting
The Labour Relations Act (LRA) provides that “Any person determining whether a dismissal for poor work performance is unfair should consider –
(a) whether or not the employee failed to meet a performance standard; and
(b) if the employee did not meet a required performance standard whether or not –
(i) the employee was aware, or could reasonably have been expected to be aware, of the required performance standard;
(ii) the employee was given a fair opportunity to meet the required performance standard; and
(iii) dismissal was an appropriate sanction for not meeting the required performance standard.”
Items 8(2) and 8(3) of the above-mentioned code provide that:
“(2) …… an employee should not be dismissed for unsatisfactory performance unless the employer has-
(a) given the employee appropriate evaluation, instruction, guidance, training or counselling; and
(b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.
(3) The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal to remedy the matter.”
These guidelines make it clear that the employer does have the right to dismiss poor performers. However, this can only be acceptable if the employer can prove factually that it has, prior to the dismissal, complied with all the substantive and procedural requirements of the law. That is, the onus at the CCMA falls entirely on the employer to bring solid proof:
• that it followed the procedural guidelines quoted above; and also
• that, regardless of the procedure followed, the dismissal decision itself was appropriate under the circumstances.
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. For example, in the case of Nationwide Airlines (Pty) Ltd vs Mudau & others (2003, 3 BLLR 279) the employer dismissed Mudau after he failed a flight simulator test. However, at the disciplinary hearing the employee was neither given the right to union representation nor was he given a copy of the results of the test that he failed. In its defence, the employer contended that the employee was in a senior position. Despite this the Court upheld the CCMA’s decision that the dismissal was unfair, stating that the employee’s seniority did not deprive him of the right to fair procedure.
However, one employer came off second best at CCMA merely because the charges put to the employee were badly formulated. In Fourie vs Capitec Bank (2005, 3 BALR 314) the CCMA found that it was unfair for the employer to have charged the employee with poor performance as well as for failing to obey the employer’s instruction as these two charges were laid for one and the same incident. It appears that the employee, as a result of failing to follow the employer’s instruction, did not perform the work properly. The CCMA also found that the employer had unfairly taken into account a previous final warning for poor performance. This CCMA finding most surprising as well as frightening because:
• The CCMA viewed the bringing of the two charges as an unfair duplication of charges. In my view, as the one charge flowed form the other, the employee was in fact guilty of both charges, and bringing both allegations resulted in a comprehensive complaint that was both factually correct and justified.
• Poor performance was part of the complaint. Therefore, the taking into account of the previous warning for poor performance was fair and proper.
This CCMA award leaves employers very unsure as to what they are and are not allowed to charge an employee with. It may be that the CCMA commissioner expected the employer to charge the employee only with poor performance and then to use the employee’s failure to follow the employer’s instruction as an aggravating circumstance rather than as part of the charge itself. However, the Labour Relations Act (LRA) does not require this. Common sense dictates that the labels given to the charges should be much less important than what the employee did or failed to do in the incident in question.
However, while decisions such as that in the Capitec case are still being made, employers need to err on the side of caution. That is, employers need to ensure that their managers undergo intensive and ongoing training by a legal expert not only in enforcement of performance standards and fair procedure but also in how to formulate charges relating to poor performance. Alternatively, if such training does not take place, then the employer should take no steps towards employee discipline or performance correction without first consulting a labour law expert.