By Sanette Viljoen
What is an employer to do in the situation where an employee really does his best, but does not possess the correct quality work performance and the ability to perform the work? He was therefore appointed beyond his ability. Is it fair of the employer to terminate such person’s employment, even it is not his fault that the work could not be executed to the standard expected of him?
It often happens that a person’s CV is very impressive or his interview was very impressive, but afterwards he cannot do the physical work. Or a person has just completed his studies and his university results are impressive, but the person cannot put theory into practice. What to do?
In the practical workplace it must surely be one of the most difficult circumstances in which to effect a dismissal where a person’s services are terminated due to poor work performance.
In this case, we return to the basic principles in the Labour Relations Act 66 of 1995. The Act provides for equitable termination of employment in one of the following cases:
- Reasons related to the employee’s conduct;
- Reasons related to the employee’s suitability;
- Reasons related to the employer’s business requirements.
Poor work performance is not only the fault of the employer. The employee is also in most cases angry if confronted with this, as he is truly giving his best. One of the valid reasons for termination of employment contained in the Act does concerns and provides for poor work performance.
The process in these circumstances differs from the usual disciplinary process where an employer dismisses an employee. This is why it is very important that an employer has to right at the beginning determine the right reason for dismissing an employee. If it is due to misconduct, the usual disciplinary process must be followed and the employee must receive a warning or be dismissed. With regard to poor work performance, the thought process differs. Here the employer states that he adheres to a standard which he expects his employee to reach and the employee is failing to do what is necessary to do so.
In this instance the Act stipulates that should the employee not have the ability to perform the work, the employer need not retain his services forever where he cannot perform in terms of his employment contract. One of the essentialia of the employment contract after all is that the employer will employ the employee and accepts that he will perform according thereto. The employee therefore does not fulfil his side of the contract to perform at a reasonable level, which is why the employer need no longer keep him in his employ.
The basic principles of the disciplinary process and the inability process due to poor work performance are the same. The employee must be notified of the problem and then be afforded the opportunity to put his case. The difference however lies in the handling and the mental attitude pertaining to the process. In the disciplinary process the person’s misconduct is addressed and he is warned or dismissed. In the inability process the employer asks if there is anything that prevents the person from performing and the question is put as to whether the employer can do something to help the employee to perform to standard. Here the employer will take a look at whether there is something he can do on his side to help and then put it in place. Should the employer subsequently still not perform, the employer may dismiss him. The handling of the two process therefore differs completely.
In 1990 the Cornell University conducted research regarding the unsuitability and the lack of abilities among people. This research gave rise to the Dunning Kruger Effect. It was found that people who are incompetent often not only lack the ability to do the work expected of them, but their inability also entails their lack of insight to be able to understand that their performance is poor. This is why the discussion regarding unsuitability should be handled with great care and sensitivity.