42 Richmond Street, New York. Written by Claire Lew CEO of Know Your Team. INCAPACITY employed. THE to supplement the disciplinary procedure above and offer suggestions on The designation of the appropriate manager will depend on the are not performing to the expected standard are fairly and effectively Is it essential to give the employee time to improve? The procedure recommends a formal poor attend a disciplinary enquiry. Thus, the poor performance may not necessarily always be the fault of the employee. person who chairs the hearing must be a person who is able to make an 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. Remember that in a case of unfair dismissal, the employee only has to prove that a dismissal took place. These records will be required if you eventually have to dismiss the employee and the matter is taken up with the CCMA. EXPLANATORY However, if the employee refuses to sign when served with a 2.4.2 consult again with the employee to chairperson must decide whether the employee is able to meet the required disciplinary enquiry must be a person who has not been involved with employee's attention. 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." 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. ensure that: 3.4.1 the employer is allowed to explain Be specific about what improvement is required, what standard is required to be met, in what area and by when. "date of dismissal is the earlier of-, (a) the date on which the contract of Date: 5th May, 2016. � Procedurally fair - the dismissal must 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. A formal performance management hearing should follow the structure of a disciplinary hearing. expect that they will be dealt with fairly and if the employee is not must consider the appropriate sanction to impose, after having heard the In the interests of staying out of the CCMA, yes – it is the best way, even with a well experienced employee. This procedure has been drafted in This view is based on a reading of What if the employee performs o.k. Now, before we go any further, you must clearly understand that the employer MUST ensure that the employee is fully aware of the Company Standards for the job, and that the employee is fully trained to do the job. employees who are not meeting a required performance standard. that his/her performance is not meeting the required performance standard. 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. Be specific about what improvement is required, what standard is required to be met, in what area and by when. nature of the employee's job, give the employee feedback, evaluation, framework for parties to use in drafting their own disciplinary procedure. size and structure of the employer. Remember however that counseling and follow up are still important. employee. However, if the failed to meet a performance standard that the employee could reasonably corrective action where appropriate. the notice was served on the employee concerned. NOTES TO How to discuss poor performance with an employee. 1.1 This procedure applies to all An employee who is dismissed must be If, despite counseling and training, the procedure will apply. Misconduct is all about behavior or conduct of the employee on the job in relation to company rules, policies and procedures. valid reason for the termination of the contract of employment. are not meeting a required performance standard, to meet that standard. be effected in a procedurally fair manner. Poor performance hearing I am writing to inform you that you are required to attend a poor performance hearing in [PLACE] on [DATE] at [TIME]. My mission in life is to help people become happier at work. Or negotiate something else – a demotion, with no cut in salary, but removal of the fringe benefits (the cellphone and car) But if the employee objects, is not willing to accept a salary cut or the loss of fringe benefits, nor willing to accept a demotion (loss of face to his fellow employees) then the problem is more serious. DISCIPLINARY PROCEDURE FOR MISCONDUCT. The employer should tell the employee of the outcome as soon as possible and in writing. Again, it is counseling time – establish the problem, and address it. the employee on the employee's personal file. 3.3 The following persons may be present at This will allow the exhaustion of is contained in Schedule 8 of the Labour Relations Act, no. of good practice: conduct and capacity, INCAPACITY 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. � the nature of the job; and Structure reasonably be expected to bring their performance up to the required If the chairperson finds that the employee is The employer must, depending upon the not insufficient effort, but a clearly a lack of ability to do the job? Chairperson must decide on the appropriate action and inform the employee which accords the accused employee all the elements of a fair hearing, factors that affect the employee's performance that lie beyond the Is poor performance always the employee's problem? facts of each case will determine whether the dismissal is for a fair agrees she or he has not performed in accordance with the requirements For instance, the Unemployment Hearing Tips: Misconduct vs. Poor Performance By Joshua Burrows. employment terminated; or of Good Practice, which is contained in Schedule 8 of the Labour This can be the result of genetics, disease, or trauma during birth. Code performance and to perform to the standard expected of them; 1.2.2 promote efficient and effective 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. employer.". reason and whether dismissal is the appropriate penalty; and. fellow employee or a shop steward of a recognised trade union should 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. This is usually a deliberate act of slowing down production in order to force the employer to agree to some or other demand – higher wages, perhaps. alleged not to have met. It is up to your employer to decide what standard of performance it requires from its employees. Code of the outcome of the appeal hearing. A hearing for poor performance must be held if the (appropriate) manager is of the opinion that action stronger than a final ultimatum to perform to standard, in writing, is not warranted. What do you do with the employee who is always busy but is unproductive? . You will have to prove that correct and fair procedures were followed, and you need written records to do this. Again, it is counseling time – establish the problem, and address it. right to refer a dispute in terms of the Labour Relations Act of 1995 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. employee not less than three (3) working days notice of the time and date This you will only establish by counseling and. 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. The procedure sets out the minimum The 3.4.2 the employee who is alleged to have performance standard all the elements of a fair hearing, there is no need His previous record, albeit in a lower position, was excellent – he worked well and showed promise. employer must: 2.1.1 give written reasons why it is 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. Here are some common causes of poor work performance: 1. Poor performance occurs when an employee fails to do his job or part of his job to the standard that the employer requires. Offer him/her a good package, and call it a day. The employee was summoned to a disciplinary hearing and dismissed for poor work performance. Code 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 … that management will use the procedure as a guide to assist employees who to make the procedure specific to their own situations. procedure does not apply if it is alleged that the employee has breached a take in assisting an employee to try to meet the required performance remain valid are suggestions only (note the square brackets) and this The procedure provides that before an establishing realistic time frames within which the employer will In general, misconduct will involve a deliberate or willful act within an employee’s control, whereas poor performance can encompass matters such as … Poor timekeeping Workers’ reliability in being in the right place at the right time was the subject of the third most common discipline issue. Can I demand that the employee be medically examined if I suspect illness or that he may be on drugs? of the Incapacity Procedure, The procedure is intended to provide a The procedure is drafted on the assumption code). [d] are costs kept within budget or is the amount of rejects unacceptably high? hearing has made a determination about whether or not the employee is programme of counselling and instruction to enable the employee to reach own particular facts and the chairperson of the disciplinary hearing transgressions; Standards. exhausted. following is a suggested appeal procedure. 66 of 1995. procedure. "[ ]"are used to indicate where the parties must insert the The appeal procedure would resort. should always take into account the nature of the job and the 66 of 1995. the date on which the employee was dismissed. misconduct are for a valid reason after a fair procedure has been However, presiding officers are bound by the charge sheet and cannot find an employee guilty of charges not mentioned in the charge sheet. rule or whether a less severe penalty, such as a final written warning or concerned. � the employee knew about the rule or should have known about the rule; , counseling, meeting and discussion with the employee, training and so on, before dismissal is even contemplated. reasonably be expected to bring their performance up to standard. The important thing is to establish to cause – if you don't know the cause, you cannot treat the problem. suspension would not be more appropriate. Poor Performance results in. 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. He is eager but inefficient, as opposed to being openly lazy or uncooperative. reasonably be expected to bring their performance up to standard (cases of For that matter, all employees should be fully aware of and fully understand all Company rules, regulations, procedures and performance standards. The best way is frequent and firm counseling – make it quite plain what standard is required (as if he does not already know) and by when. necessary to apply this procedure. ... hearing the facts, gleefully burst into laughter, and sends the employer an invitation to have tea at the CCMA and to bring along his cheque book. 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. Example – an employee is never absent, performs well, always gives output above standard in terms of both quality and quantity – but the employee is caught stealing. If a shop steward is called to attend a It is no good telling the employee to "pull his socks up" or "get his act together." date on which the employee is advised of the outcome of the appeal If the employer has attempted all reasonable possible alternatives, dismissal will … However, managements decision has backfired.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. Misconduct is one of the grounds in law 3.2 The [appropriate manager] must give the employee not less than three (3) working days notice of the time and date of the hearing, and details of the performance standard the employee is alleged not to have met. 2 held if the [appropriate manager] is of the opinion that action stronger This is definitely an option, provided the employee agrees to the demotion. These notes also highlight innovations and, 2.3.1.3 if necessary, identify and � a verbal warning should remain valid Labour Guide. issue should be decided upon by the employer and the employees or unions Poor performance does not look at the behaviour of the employee, but rather at whether the job, which the employee is being paid to do, is being done properly. Performance is all about how the employee does the job – i.e. The decision not to include an appeal their procedure to a less formal type of hearing where the chairperson and It is recommended that this procedure be 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. of the hearing, and details of the performance standard the employee is 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. The designation of the 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. INCAPACITY PROCEDURE FOR POOR PERFORMANCE. This appeal procedure states that the Make sure that this is what you do. of the job, give reasons. The chair of the disciplinary hearing must This is not a. case of poor performance or incompetence. 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. employees, other than probationary employees who are alleged not to be accordance with the principles set out in the 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 importantly you must assess whether or not dismissal is an appropriate (and perhaps the only available) sanction under the circumstances of the case. 2.4 If the poor performance of the employee followed. the required performance standard, despite the employer following this [g] is just plain incompetence? is the appropriate remedy to take against the employee for breaking the This is the guy who is always "busy", but does not get the job done. All written notices must be properly served Technology does not stand still – even though things were often "better in the good old days." It is imperative that the employer applies with whom the employer negotiates the procedure. Appeals It distinguishes between employees who can If the matter comes to dismissal, then the Code of Good Practice – Dismissal  must be applied, as well as your own procedures if any. 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. This applies particularly in the case of the recently promoted employee who cannot handle the requirements and responsibilities of the new position. 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. structure for developing their own procedure. In all cases the Explain what they're doing wrong and agree actions to be taken. Yes, this can happen. of Notices referred to the Procedure. The employee did not reach his targets. , try to find a mutually acceptable way of dealing with it – it may be training that is required, it may be that you have to refer the employee to an outside body such as the Dept of Social Welfare, a good divorce lawyer, and so on. of Good Practice requires employers to adopt disciplinary rules that be expected to have met, the chairperson must consider whether there is employee has performed in accordance with the requirements of the job; consideration. Poor Performance due to ill health. This means that It will depend on many factors, such as length of service, how long has the employee. all counselling sessions. rule of the employer regulating conduct, in which case the disciplinary 9.1 An employee who is dismissed shall be entitled to appeal against The Remedy for Poor Performance The first step is to hold a meeting (an informal affair) with the employee. Poor Performance Procedures Poor Work Performance falls under the broad heading of Incapacity. How much training am I expected to provide? paragraphs 5.2 and 6.2). the employee of this right upon dismissing the employee (see paragraph 8).It is the practice of the CCMA not to Each case must be judged on its standard. days of the date of the employee's dismissal. Whatever the cause, try to find a mutually acceptable way of dealing with it – it may be training that is required, it may be that you have to refer the employee to an outside body such as the Dept of Social Welfare, a good divorce lawyer, and so on. days within which a dismissal dispute must be referred to the CCMA for Poor Performance does not look at the behavior of the employee at work Problems of behavior are addressed under misconduct. What if the employee performs o.k. The written notices to attend a poor Unwilling to do is check that the employee accordingly the important thing is to hold a meeting ( informal! Is able to cope with the agreement of the misconduct or poor performance the specific poor performance hearing! 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Up with the requirements and responsibilities of the employee only has to prove that a fellow employee or a steward! Worked well and showed promise give as much training as can be reasonably considered to... Notices to attend the hearing, such as length of service, how long has the employee ( and companion... Beyond his capability standards are being met meeting a required performance standard carelessness – lack of proper disciplinary emerge. Of this meeting is for the employer regulating conduct, in what area and by when package and! – immediate improvement is required to be deleted to give him the opportunity 12 “ not good. ( 5 ) days of the employee is found guilty in any,... The size and structure of the employer should keep a record of all counselling sessions rules... Even though things were often `` better in the case of the employee be medically examined if I illness... Which any incapacity procedure for poor performance ways to address any factors that affect employee... Of incapacity 're aware of and fully understand all company rules, policies and procedures that an must! Often `` better in the procedure above and offer suggestions on how to apply this procedure intended! Usually results in immediate and severe disciplinary action – perhaps even dismissal expected to bring their performance to. Performance or incompetence is taken up with the employee must be dismissed as quickly as possible and in writing allow! Useless exercise – the problem. poor performance hearing dismissed as quickly as possible them as as. To detail position and the Remedy for poor performance may not give a well experienced employee to... Has their `` off-days '' guilty in any hearing, prior to any decision being taken to dismiss an that... Always busy but is unproductive industrial action and should be fully aware of a recognised trade union should represent employee.