An employer who is taken to the CCMA after firing and employee for poor work performance will be required to prove that:
- The employee knew the required performance standard
- The standard was achievable
- The employee was given sufficient opportunity to achieve the standard
- It was the employee’s fault that he/she failed to achieve the standard.
We look at each of these four requirements:
1) DID THE EMPLOYEE KNOW WHAT THE PERFORMANCE STANDARD WAS?
It would be unfair to fire an employee for failure to attain a target if the employer had, for example, failed to inform the employee that he/she was required to make 10 sales per month or build 200 houses per year.
2) WAS THE STANDARD ACHIEVABLE?
For example, if other employees have been able to type letters without making mistakes the employee who keeps making errors despite having been counseled could be disciplined and possibly dismissed depending on the circumstances.
3) HAS THE EMPLOYEE BEEN GIVEN SUFFICIENT OPPORTUNITY TO ACHIEVE THE STANDARD?
The CCMA will have a problem with the employer where, for example, the employee was appointed on a 6 month probationary basis and is fired after only 2 weeks because his/her was not up to standard.
4) WAS IT THE EMPLOYEE’S FAULT THAT THE PERFORMANCE STANDARD WAS NOT MET?
Dismissal will probably be adjudged to be unfair if the reason for the poor performance was, for example, that:
- the employer had failed to provide the employee with manufacturing materials
- equipment was faulty
- required training had not been given
- the employer’s product was not in demand.
In Robinson vs Sun Couriers (2003, 1 BALR 97) the CCMA found Robinson’s dismissal to be unfair because the employer had neither established the reason for the poor performance nor brought any proof that the poor performance was the employee’s fault.
It is clear that, in setting and implementing performance standards, employers must:
- Set targets that are provably reasonable
- Adjust targets when changed circumstances dictate this
- Give employees a real chance to achieve the desired performance level
- Remove all obstructions to the achievement of the standards.
Employers should not dismiss under-performers without having attended to the above requirements and without having followed proper procedure. Where the employer is at all unsure as to whether it can dismiss a poor performer it should get advice from a reputable labour law expert before taking any action. Hasty or emotion driven action will have dire consequences.
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