Time and again employers are faced with the problem of a non performing employee and how to deal with such an employee without breaching the provisions of the Employment Act.

In law, poor performance is also regarded as some form of incapacity which may lead to a dismissal of an employee.

Poor performance arises where an employee does not meet the required performance standards or levels of competency as set out by an employer. An employee should be timeously informed of his/her deficiencies, be told how to rectify them and be given a reasonable opportunity to improve before any action is taken against him/her.

An employer should stipulate the required standards of work. Some standards are self-evident or can be inferred from custom and practice. Others need to be stipulated in the Contracts of Employment or in applicable work schedules and brought to the specific attention of the employee.

The employer must give appropriate guidance, instruction or training, if necessary, to an employee before dismissing the employee for poor work performance. What is appropriate will depend on the circumstances of each case and the employer is not normally obliged to retrain the employee in all the skills required to perform the job. Section 26 (4)(i) of the Employment Act Cap 47:01, provides that consistent poor work performance below average despite at least two written warnings may constitute serious misconduct. This does not however mean that two warnings will have to be given in all cases or that two warnings are always sufficient.

There should be some investigation to ascertain the reasons for the unsatisfactory performance. If the investigation reveals that all or part of the reason for the employee’s poor performance is not the fault of the employee that would have a bearing on the fairness of any action taken against the employee. What is a reasonable time to be given to an employee to improve depends on the nature of the job, the extent of the poor performance, status of the employee, length of service, the employee’s past performance record among others.

In light of the absence of any intentional or negligent conduct on the part of the employee, such dismissals relate ultimately to the inherent inability of the employee to do the job. Fair procedure should not aim to hold the employee responsible but should instead attempt to establish the reasons why the employee is incapacitated and attempt to find solutions aimed at either overcoming or accommodating the incapacity.

The question to be asked therefore should be, did the employee fail to meet a performance standard?

If the answer is in the affirmative, then the following questions also have to be answered in the affirmative beforea dismissal can be justified.

• Whether the employee was aware or could reasonably be expected to have been aware of the required performance standard?
• Whether the performance standard is reasonable?
• Whether the employee was given a fair opportunity to meet the standard?
• What were the reasons why the employee failed to meet the performance standard?
• Whether dismissal is the only appropriate sanction for not meeting the performance standard?

Poor performance is a question of fact to be determined on a balance of probabilities. This can be difficult if the employee’s tasks are not capable of precise measurement or evaluation. The burden of proof lies with the employer and that is why it is important for the employer to engage in a process of assessment and appraisal with the employee.

Once all the above have been assessed and dismissal is the only appropriate sanction for the employee’s failure to meet the performance standard, then a hearing should be conducted. If the employee consents and concedes to the fact that he/she has failed to meet the standards and is ready to leave employment, then the whole process of a hearing can be dispensed with.

If the employee however does not consent, then the employee has to be given a proper hearing where the employee is notified of the allegations against him/her using a form and language that the employee can reasonably understand and also giving the employee reasonable time to prepare for the hearing and to be represented at the hearing by a fellow employee or a Trade Union Representative if the employee is a member of a Trade Union.

The hearing must be chaired by a sufficiently senior and impartial representative from management and the hearing has to be finalised within a reasonable period of time. The employee should be given an opportunity to respond to allegations against him/her and cross examine any witnesses called by the employer and also to lead his/her own witnesses if necessary.

The result of the enquiry should be communicated to the employee in writing and the employee can be given an opportunity to appeal against the decision arrived at after the enquiry to a further senior person within management mentioned in the decision.

It is worth noting that an opportunity to improve may be dispensed with if the employee is a Manager or senior Employee whose knowledge and experience qualify the employee to judge whether the standards set by the employer are being met.

Written by Thabiso Tafila Partner and Head of Labour Relations and General Litigation, Minchin & Kelly, Botswana (a member of DLA Piper Africa)