Employers are often frustrated by employees who don't seem to cope and who do not pull their weight operationally. This could lead to resentment by co-workers and reputational embarrassment. The problem will not go away by itself - the employer must take the initiative. Here's how.

Incapacity in labour law is the non-blameworthy breach of performance standards, i.e. the employee is unable to cope with the work and the lack of performance is not due to his/her fault (i.e. intentional or negligent under-performance).

There are two recognised types of incapacity in the LRA:

• Poor performance (incompetence) OR
• As a consequence of ill-health or injury (temporary or permanent)

Incapacity counselling should be embarked upon if the employee does not have the capability to perform at the required standard - either in respect of skills, competence, knowledge, experience; or in respect of ill health. This is not a disciplinary process where the employee can be blamed for under-performance. Incapacity is a “no fault” process and therefore warnings are not applicable.

Procedure – Counselling process

The following is a summary of the recommended steps for an incapacity counselling process. Throughout this process, the employee may be assisted by a co-worker. This is a participative and interactive process where the employee must be given the opportunity to also make proposals.

At the first counselling session:

1. Measurement of the employee’s expected performance against actual performance must be available.

2. Identify the shortfall in performance and specific areas of under-performance and alert the employee to this.

3. Determine the reason for the inability to meet the required standard / poor performance. (By now, the employer should already have eliminated and addressed any reasons relating to misconduct / operational issues / workload / etc.)

If the reason is ill health, then a medical report is the starting point.

• The employer needs to determine whether the employee’s health condition is temporary or permanent / chronic – this is with a view to operational planning.
• The doctor should be briefed in detail by the employer when asked for a report and prognosis. Explain the duties of the employee and the demands of the job (physical, emotional, psychological, safety requirements) so that the doctor can make an informed assessment of the ability of the employee to perform those duties and formulate a prognosis.
• The employer is not entitled to ask for any private information such as the nature of the medical condition, without the permission of the employee.
• The doctor needs only to certify to the employer, in his/her expert opinion, what the employee’s ability is to do their job or parts of it; and give a prognosis in terms of the period involved; also advice in terms of possible assistance by the employer to the employee to manage the condition.
• The employer is entitled to appoint a doctor of its choice to do the examination, or for a second opinion.
• If the reason for failing to attain the required standard has to do with competency or lack of skills, any necessary training, guidance, counselling, mentoring to address that must be determined. For more senior employees or employees with professional qualifications, the obligation by the employer to assist in this regard is much less, as it can be expected of such persons to demonstrate certain abilities.

4. Decide on an action plan to address these issues, with the input of the employee. Determine specific steps and/or interventions to take place within a specified time period.

5. Give a reasonable time to implement the action plan and for the employee to meet expected performance goals / improved attendance / better health (if applicable). The period depends on the nature of the job and the contents of the action plan. (If the employee has a health condition that is permanent and that impacts on his/her performance / attendance at work, there may not be cause for a long counselling process to look for improvement, but rather to look into possible alternatives.)

6. Set a date for the next formal counselling session in order to review the situation and follow up.

7. Inform the employee that the employment relationship will be in jeopardy if the goals cannot be achieved within a reasonable time.

8. There should be no warnings applicable to this process – there is no point in issuing warnings for an employee who is not at fault, but rather incapable of meeting the required standard.

9. Monitor progress regularly during this period and at further formal counselling sessions. Document and minute everything. The number of further counselling sessions will depend on the particular situation and the progress made (if any). In the case of ill health, further medical reports (including specialists, therapists) may be required.

10. If the employee remains unable to fulfil his/her duties at the required standard despite these interventions, the employer must consider reasonable alternatives to avoid dismissal – again with the input of the employee. These may include:

• A different position to suit the capabilities of the employee.
• Adapting the employee’s work circumstances to reasonably accommodate the incapacity.
• Adapting the employee’s duties.
• Getting a temporary replacement.
• If an alternative position is available but at a lower salary (e.g. a demotion), the employee’s agreement is necessary to accept the job on those terms.

11. If no alternative is available or agreed to by the employee, a final decision must be made about the continued employment of the employee. Preferably have a final formal meeting / “hearing” prior to the final decision to dismiss. Place on record and minute the process followed and the employee’s inability (either due to incompetence of ill health) to perform his/her duties as required despite the opportunities given. The employee has the right to make final representations why they should not be dismissed and may be assisted by a co-worker.

The employer takes a final decision in terms of dismissal of the employee on the basis of incapacity.

For more information, please contact Judith at judith@griesselconsulting.co.za