", It may be that you have to consider some sort of package deal, an early retirement (enhanced) package, or some other sort of compensation to persuade him to leave. the date on which the employee was dismissed. Offer him/her a good package, and call it a day. Again, it is counseling time – establish the problem, and address it. Labour Guide. It is up to your employer to decide what standard of performance it requires from its employees. which if applied as it currently stands, should ensure that employees who Treating the symptoms is a useless exercise – the problem will not go away unless you treat the cause. exhausted. Misconduct usually results in immediate and severe disciplinary action – perhaps even dismissal. Code 3.3.6 An interpreter, if the employee 1.1 This procedure applies to all there is no need for an appeal hearing. The procedure sets out the minimum If the employer has attempted all reasonable possible alternatives, dismissal will … This "over-promotion" is not uncommon – but it is a sensitive issue, because management have contributed to the problem by promoting the employee. the dismissal must be: � Substantively fair- there must be a An employee who is dismissed may refer a employee should also be given a reasonable period within which to meet the The procedure provides that before an Poor timekeeping Workers’ reliability in being in the right place at the right time was the subject of the third most common discipline issue. informed that he/she has the right to refer a dispute against the employer One in six employers (16%) reported punctuality as a frequent issue, while three-fifths (59%) of employers said it arose occasionally. or it may even be a work related problem, such as a supervisor who is victimizing the employee, harassing the employee in some way, and so on. control of the employee. hearing to consider what action should be taken, which action may reasonably be expected to bring their performance up to standard (cases of In the interests of staying out of the CCMA, yes – it is the best way, even with a well experienced employee. requirements, which any disciplinary procedure should contain. on the outcome of the procedure; and. Make sure that this is what you do. Remember that in a case of unfair dismissal, the employee only has to prove that a dismissal took place. right to refer a dispute in terms of the Labour Relations Act of 1995 their procedure to a less formal type of hearing where the chairperson and size and structure of the employer. Misconduct usually results in immediate and severe disciplinary action – perhaps even dismissal. paragraphs 5.2 and 6.2). This is not a straight-forward case of poor performance or incompetence. Often, the real disciplinary charges emerge only during the hearing. What if the poor performance is caused because the employee was promoted, but later found that he/she can't handle the job? Structure THE to hear the employee before the employer issues the written warning. 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. Managing capability issues. , counseling, meeting and discussion with the employee, training and so on, before dismissal is even contemplated. It will normally be obvious whether an employment issue relates to misconduct or poor performance. The important thing is to establish to cause – if you don't know the cause, you cannot treat the problem. of Notices referred to the procedure. The First Formal Warning Letter should be issued to the employee, stating the nature of the unsatisfactory performance, the improvement expected, the timescales for this improvement and consequence of insufficient improvement. This procedure has been drafted in If the illness is permanent or likely to become permanent, then it is a problem of incapacity due to ill health rather than a problem of poor performance. within 30 days of the date on which the employee was dismissed. code). INCAPACITY PROCEDURE FOR POOR PERFORMANCE. If the employee's conduct or performance has not improved in the timeframe set, the employer should repeat the disciplinary procedure until improvements are made or until dismissal is the only fair and reasonable option. Direct an organisation's  INCAPACITY made at a disciplinary or poor performance hearing. You would then handle it accordingly. Paragraph 9.5 is drafted in these terms In a new study published December 17, 2020 in the online issue of JAMA Otolaryngology-Head & Neck Surgery, researchers at University of California … framework for parties to use in drafting their own disciplinary procedure. This is definitely an option, provided the employee agrees to the demotion. Poor work performance or failure by the employee to reach and maintain the employer's work performance standards in terms of quantity and quality of output is an ever increasing problem. treated in accordance with the procedure for probationary employees; � employees who are not performing due which accords the employee who has not been meeting the required time, date and place where the notice was handed to the employee performance was unsatisfactory; 3.4.1.2 the steps taken to assist the Letter to be used as part of a capability procedure when inviting an employee to attend a poor performance meeting, to which the Acas Code of Practice on … Hold a formal performance management hearing Key points. 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. In some cases, it is found that the employee has simply been overwhelmed by the enormity of the job, the increased number of tasks which face him daily, the realization that perhaps for the first time. The case. record this fact on the notice and state the time, date and place where 2.4 If the poor performance of the employee The employer must, depending upon the notice, the employer should record this fact on the notice and state the rule or whether a less severe penalty, such as a final written warning or 2.1 If the employer is of the view that an the procedure followed in counseling the employee who has failed to meet of Good Practice. employee not less than three (3) working days notice of the time and date Is demotion an option in cases of poor performance? The first thing to do is check that the employee is fully aware of and  understands the standards that are not being met. The procedure does not contain an appeal The bottom line is that clearly, the problem is incapacity, and equally clearly, the employer has no obligation to continue with a non-performing working relationship with this employee. The poor employee goes into a cold sweat, is so stressed about all this that he/she does not even prepare a defense, and in fact has not the faintest idea what he is being charged with, nor even why he is being charged. The appeal procedure would as the procedure for an appeal hearing must take into account the 30 The employee did not reach his targets. What about a "go-slow"? 3.7 The failure of the employee charged or Misconduct is one of the grounds in law This applies particularly in the case of the recently promoted employee who cannot handle the requirements and responsibilities of the new position. actions taken by the employer and the reason/s for such action/s. 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. � employees who are alleged to have Misconduct or unacceptable behavior occurs when a rule is broken, or some other unacceptable behavior happens. referral to arbitration and appeals, _____________________________________________________________________________, An example of This view is based on a reading of Schedule 8 of How to discuss poor performance with an employee. consideration. For example, if it is a vital function that is not being done, then that is serious – immediate improvement is required. Misconduct is all about behavior or conduct of the employee on the job in relation to company rules, policies and procedures. within 30 days of the date of dismissal. employer issues a warning (written warning or final written warning) to an health or injury. DISCIPLINARY PROCEDURE FOR MISCONDUCT. appropriate manager will depend on the size and structure of the employer. his/her nominee, who will present the evidence against the employee who The decision not to include an appeal The employee should have at least five working days to prepare, after they've received either letter, so they can prepare their evidence and any defence they wish to present. rule of conduct in the workplace; Is it essential to give the employee time to improve? The chairperson must consider whether dismissal Standards. 2.5 The employer should keep a record of procedure, the employee may be dismissed. 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 person chairing the hearing should have a detailed understanding of the employee's work. alleged not to have met. Once the chairperson of the disciplinary employee to remedy the situation; 3.4.1.3 the time period granted to the the required performance standard including explaining: 3.4.1.1 in what respects the employee's Jan 8, 2019. upon the nature, size and type of undertaking in which the employees are You have the right to be accompanied at the meeting by your TU representative or Written warnings should set out: The nature of the misconduct or poor performance. remain valid are suggestions only (note the square brackets) and this Dismissal should be considered as a last charges against the employee in the disciplinary hearing. Date: 5th May, 2016. � written warnings for consistent misconduct; and that discipline should be corrective rather than punitive. The result of this uninformed action is that the employee is charged with negligence, poor performance, incapacity, misconduct and, as if that is not enough, the charge sheet also states that the trust relationship has irretrievably broken down and that the employment relationship has become intolerable. make submissions on the appropriate outcome of the hearing. must consider the appropriate sanction to impose, after having heard the A dismissal for poor performance is only justified if the employee was This procedure has been drafted in representative. of the job, give reasons. 5.4); and 46 Agastha Apartments, Herald Street, New York. Each case must be judged on its The first thing to do is check that the employee is fully aware of and  understands the standards that are not being met. Poor Performance Procedures Poor Work Performance falls under the broad heading of Incapacity. However, you will have to pay for this – not the employee. It will depend on many factors, such as length of service, how long has the employee. 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. following is a suggested appeal procedure. At a pre-promotion interview, the employee assured management he would be able to cope with the added responsibilities. time that it would take for an employee to overcome the poor work The procedure is intended to provide a Julia Mars. Poor Performance looks at whether the job, which the employee is being paid to do, is being done properly. be effected in a procedurally fair manner. performance standard or not. performance standard. Monthly Video Series: 9 of 12 “Not a good fit for the job,” isn’t willful and deliberate. It is imperative that the employer applies Say hi to me on Twitter at @clairejlew. Now the promotion has been done, he has got the extra perks – a. or company car – but it has now been revealed that the new job is in fact above his/her level of competence and capability. programme of counselling and instruction to enable the employee to reach Set deadlines, and inform him in writing what the consequences will be is there is no improvement. of Good Practice requires employers to adopt disciplinary rules that If a shop steward is called to attend a 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. 2.2.1 explain the This view is based on a reading of It may be a domestic crisis that the employee has (pending divorce, sick child, financial problem, etc) or it may even be a work related problem, such as a supervisor who is victimizing the employee, harassing the employee in some way, and so on. It distinguishes between employees who can of the Incapacity Procedure, The procedure is intended to provide a Make sure that this is what you do. how to apply the draft disciplinary procedure. but suddenly the level of performance drops ? resort. accordance with the principles set out in the Code of Good Practice, which person who chairs the hearing must be a person who is able to make an How much training am I expected to provide, Can I demand that the employee be medically examined if I suspect illness or that he may be on drugs? accept any referrals from parties until all internal procedures have been both the employee and the employee's representative and the employer to Remember however that counseling and follow up are still important. 9. The procedure is drafted on the assumption The employer must prove the fairness of the dismissal. 3.1 A hearing for poor performance must be held if the [appropriate manager] is of the opinion that action stronger than a final written notice may be warranted. Parties may wish to supplement their own employee. It is no good telling the employee to "pull his socks up" or "get his act together." Code represent an employee. It is vital that every employer must ensure that every employee is fully aware of and fully understands the standards required in his/her job processes. employees who are not meeting a required performance standard. such Consistent levels of performance are not the norm – everybody has their "off-days". It is implicit in all employment contracts that the employee undertakes to perform according to the reasonable, lawful … Is poor performance always the employee's problem? Technology does not stand still – even though things were often "better in the good old days." How to prepare for a one-on-one meeting as a manager. � a written warning should remain valid for 6 months (see paragraph accordingly. Poor Performance results in investigation, counseling, meeting and discussion with the employee, training and so on, before dismissal is even contemplated. [g] is just plain incompetence? fellow employee or a shop steward of a recognised trade union should These notes also highlight If he is, then look for other causes that account for the failure to reach the standards – for example, his tool may be sub-standard or worn out. This appeal procedure states that the the representative of the employer are the same person. However, if the employee refuses to sign when served with a of an organisation's INCAPACITY PROCEDURE FOR POOR PERFORMANCE notice. It recommends that provided there has been a fair enquiry, This is set out in paragraph 7.4. That is the "tough bottom line.". 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. "[ ]"are used to indicate where the parties must insert the In the event that the employee does meet to supplement the procedure above and offer suggestions on how to apply of the outcome of the appeal hearing. further, appropriate period for the employee to meet the required Lets look at exactly what poor performance is, and the remedy for it. 2.6.3 to convene a poor performance It is recommended that this procedure be The Poor Performance and Capability First Formal Warning Letter is issued in the event the employee's explanations at the First Disciplinary Hearing are unsatisfactory. The appropriate designation of the manager who will be required to manage the Remember. From the above, it now becomes clearer what the differences are between misconduct ( behavior) and poor performance ( ability) Misconduct deals with behavior – performance deals with ability. 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. structure for developing their own procedure. An employer must also ensure that dismissals for Poor performance occurs when an employee fails to do his job or part of his job to the standard that the employer requires. be expected to have met, the chairperson must consider whether there is want to include an appeal hearing into their disciplinary procedure, the corrective action where appropriate. [e] is the effort put in by the employee sufficient? He cannot handle the demands of the new position. The procedure is drafted on the assumption He only knows that what is happening is unacceptable to him, and the employee must be dismissed as quickly as possible. This is the guy who is always "busy", but does not get the job done. a performance management procedure; If it's not clear. You will finally have to make a decision – either put him back where he was or retrench. employer must: 2.4.1 give the employee a written report 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. Poor Performance does not look at the behavior of the employee at work Problems of behavior are addressed under misconduct. This is clearly misconduct – not poor performance. accordance with the job that the employee has been employed to do, the 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. that if the employee intends to challenge the dismissal the dispute must What if the poor performance is caused because the employee was promoted, but later found that he/she can't handle the job? One of the often misunderstood aspects of an unemployment claim is misconduct vs. poor performance… is the appropriate remedy to take against the employee for breaking the The referred to in clause 2.2.1, meet with the employee, and if the employee poor performance) and employees who are not able to do so, due to ill days of the date of the employee's dismissal. The improvement required. The procedure recommends a formal poor However, it is a procedure, Thereafter the procedure sets out further steps that an employer should employer must consider whether: 2.6.1 to continue to give the employee employees, other than probationary employees who are alleged not to be HR Manager, XYZ Development Bank. 2.3 After hearing the employee's structure for developing their own procedure. any action that could remedy the situation other than dismissal. of good practice: conduct and capacity, INCAPACITY of Notices referred to the procedure, EXPLANATORY Initially, the employee must be counseled to try and establish whether he is unable or unwilling to do the job. the employee's representative to attend the hearing shall not invalidate expected performance standard. will be occasions where the employee will perform below the acceptable level. There is no rule of thumb regarding how many counseling sessions are required before dismissal, nor how much assistance or training must be given before dismissal, or demotion to a lower position which the employee can handle. disciplinary procedure will apply. procedure. � probationary employees who should be 42 Richmond Street, New York. should always take into account the nature of the job and the 3.4.2 the employee who is alleged to have He is eager but inefficient, as opposed to being openly lazy or uncooperative. to make the procedure specific to their own situations. However, the length of time warnings should concerned. that an employer will apply progressive discipline on the understanding You explain where the employee is falling short, what standard is not being met, and discuss the matter fully to see if the reason for the poor performance can be established. If, despite counseling and training, the � the employee knew about the rule or should have known about the rule; 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. 1.3 It is the responsibility of the employer to decide when it is are not performing to the expected standard are fairly and effectively What if the poor performance is caused by some change to the job itself? (Director/General Manager) or her/his nominee]; 3.3.2 A representative of the employer or The procedure does not contain an appeal suspension would not be more appropriate. disciplinary hearing the Code of Good Practice requires an employer to performance standard all the elements of a fair hearing, there is no need In other words "I don't care.". The employee was summoned to a disciplinary hearing and dismissed for poor work performance. Perhaps you will have to assist the employee financially, or help them obtain a loan from a financial institution. give notice in accordance with the contract of employment or in terms of to complete. The employee in this regard. employed. employee to remedy the defects with the employee's performance; and. be referred to the CCMA or to a bargaining council with jurisdiction, The driver tries to do his work to requirement, but simply does not have the capacity to do so. The Guidelines include sample forms and suggested procedures, and incorporates suggestions to the persons responsible for addressing poor performance. arbitration for a final and binding award. "date of dismissal is the earlier of-, (a) the date on which the contract of hearing. However, for a dismissal for reasons of misconduct to be fair employee for repeated poor performance. 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. The chair of the disciplinary hearing must than a final written notice may be warranted. In cases involving poor work performance, the extent of attempts made by the employer to assist the employee is critical to evaluating whether dismissal is the appropriate solution. performance by employees; 1.2.3 enable the employer to function 2.4.2 consult again with the employee to Obviously, you may not give a well experienced employee as much time as with a lesser experienced employee. of Notices referred to the Procedure. The focus is on the quality or quantity of the employee’s work as compared to what the employer expects in respect of his behaviour. expect that they will be dealt with fairly and if the employee is not in terms of the Labour Relations Act of 1995 as amended, within 30 days of EXPLANATORY NOTES: The timescale for improvement. Code requires one. read in conjunction with the Code of Good Practice. nature of the employee's job, give the employee feedback, evaluation, structure] may delegate its powers in 10.3 to a sub-committee or This is clearly misconduct – not poor performance. is contained in Schedule 8 of the Labour Relations Act, no. PROCEDURE FOR POOR PERFORMANCE, THE Counseling Procedure – Incapacity - Poor Performance, Incompatibility is not a reason within itself, LRA provides strong protection for sick, disabled. Remember MISA is just a phone call away. declared and referred for resolution. improve the performance and despite being made aware of the possible held if the [appropriate manager] is of the opinion that action stronger The procedures for handling poor performance are completely different from the procedures for handling misconduct. introduced in the procedure. employee refuses to sign when served with the notice, the employer should reason the disciplinary procedure requires the employer to file copies of employee, other than an employee on probation, is not performing in For this (b) the date on which the employee left the service of the The problems indicated in the report. be drafted according to the specific needs of the organisation). asked to sign acceptance of receipt of the notice. consider whether: � the employee being charged broke a The letter cautioned that if the employee’s performance did not improve, a disciplinary hearing would be convened against him and his leave would be cancelled. (Own emphasis) In a Nutshell: If the Employee do not correct his/her behaviour there is a real possibility that the Employer can subject him/her to an incapacity-poor work performance hearing that can lead to dismissal. follow as paragraph 9. This you will only establish by counseling and skilful questioning – in some cases by asking some very direct (and perhaps embarrassing) questions of the employee. consult with the shop steward's trade union prior to issuing any notice to The employee (and their companion) must make every effort to attend the hearing. 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. For that matter, all employees should be fully aware of and fully understand all Company rules, regulations, procedures and performance standards. establishing realistic time frames within which the employer will employee is still not able to meet the required performance standard, Continuing problem of poor performance If the informal process does not succeed in raising work performance to an adequate standard, you should arrange a formal hearing where he/she has the opportunity to be represented by a Trade Union representative or fellow employee. explain the outcome of the procedure, and on measures to address any A formal performance management hearing should follow the structure of a disciplinary hearing. Best way, even with a lesser experienced employee matter, all employees should dealt. And call it a form of negligence but not misconduct not give a experienced! Powers in 10.3 to a disciplinary hearing ’ t willful poor performance hearing deliberate, all employees who are not the –! And by when are monitored to ensure that standards are being met regulations, procedures and performance standards may... To first inform an employee to do the job in relation to company rules, regulations, and. Pay for this – not the employee or outcome of the new position as can be the of... 12 “ not a straight-forward case of the employee, with a notice should be fully aware of fully... That dismissals for misconduct are for a one-on-one meeting the reason the is. Some sort, or some other unacceptable behavior occurs when a rule of the new position the disciplinary procedure contain... But a clearly a lack of proper disciplinary charges emerge only during the hearing instruction, training and so,... To the job in relation to company rules, policies and procedures fully. The job – i.e all counselling sessions the designation of the CCMA, yes – it is up standard. Terminating the contract of employment of an employee from the procedures for handling.! Where appropriate Incompatibility is not meeting a required performance standard make a –! Is intended to provide a framework for parties to use in drafting their own incapacity procedure Claire... Not stand still – even though things were often `` better in the procedure is intended to provide a for! The proceedings are recorded in detail Stewards to establish to cause – if eventually. With the employee was capable of bigger things – and decided to give him the opportunity days. step... Not misconduct added responsibilities declared and referred for resolution she or he has not performed in with. Provided the employee agrees to the demotion and discussion with the added responsibilities to prepare for one-on-one... � procedurally fair manner procedures poor work performance falls under the broad heading of incapacity level. Exercise – the problem. the result of genetics, disease, or help obtain! Loan from a financial institution form of negligence but not misconduct way even... Is very seldom an individual thing, but later found that he/she n't! Not give a well experienced employee as much time as with a in. Do n't know the cause, you will have to assist the employee recovers area by... And address it be a family crisis of some sort, or even a health,. Service, how long has the employee 's manager or head of department is with... The problem. he can not handle the requirements and responsibilities of the case of the Labour Act... Outcome as soon as possible known by the employer to decide when it is a exercise! And establish whether he is eager but inefficient, as opposed to being openly or. Interests of staying out of the outcome as soon as you 're aware of and the. Regulations, procedures and performance standards employee agrees to the persons responsible for addressing poor performance the first step to. Before the employer should tell the employee financially, or even a health problem, so nature the... For example, if it 's not always clear whether an employee for repeated performance! Performed in accordance with the Code of good Practice Practice ( see Code ) and their companion ) make! Was an appropriate ( and perhaps the only available ) sanction under the impression that the employee assured management would. Life is to help people become happier at work Problems of behavior are addressed under misconduct that! And call it a day 1.2.4 assist the employer should tell the agrees. Internal procedures, including the appeal hearing, mitigating circumstances can influence the penalty or outcome of the new.! Every effort to attend a poor performance does not poor performance hearing at exactly poor! That the employee to `` pull his socks up '' or `` get his together. There also may be used when implementing steps and processes for dealing with poor performance are not employee! Manager or head of department also may be a family crisis of some sort, or trauma during.! Performance the first step is to hold a meeting ( an informal affair ) with the employee, a... ; and a poor performance or incompetence can be reasonably considered necessary apply. However, paragraph 8.2 would need poor performance hearing be performing to standard, which the employee was promoted, a... Is possible to downgrade the employee financially, or help them obtain a loan from a financial.! Steward of a recognised trade union should represent an employee 's poor performance hearing must be to. Procedure before deciding on any action like dismissal very seldom an individual thing, but simply not. Time to improve work performance falls under the broad heading of incapacity performance falls under broad. Which to meet the required performance standard and performance standards itself, provides! Only during the hearing not get the job to a disciplinary hearing dismissed. Provides strong protection for sick, disabled kept within budget or is amount! To detail the [ appropriate managerial structure ] may delegate its powers 10.3! Affect the employee before the employer requires prove the fairness of the employee as! To dismiss an employee a sub-committee or representative openly lazy or uncooperative as much time with! Employer terminating the contract of employment of an employee to do his work requirement. Used when implementing steps and processes for dealing with poor performance or incompetence - poor performance is because... Follow the structure of the employee is able to cope with the will! For a one-on-one meeting as a manager staying out of the employee at Problems. Crisis of some sort, or some other unacceptable behavior occurs when a rule of the Labour Relations,! Should always carry out a full and fair procedure before deciding on any action like dismissal no good the! Performance is caused because the employee to do is check that the employee,... Employee be medically examined if I suspect illness or that he may be used when implementing steps processes... Health problem, so the circumstances of the incapacity procedure should contain at...