Incapacity because of ill-health differs from poor work performance because there can be no fault attributed to the employee for incapacity due to ill-health or injury. Dismissal for Alleged Incapacity: POOR WORK PERFORMANCE This checklist has been prepared having regard to the CCMA Arbitration Guidelines, the Code of Good Practice: Dismissal and relevant case law v34 Go to www.purshotam.co.za for an updated version of this document plus many more aids NB: The law does NOT require that each and every 2. ... namely Poor Work Performance and Ill Health or Injury. We dealt previously with the fairness of dismissal for misconduct, and for Incapacity – Poor Work Performance. requirements for a fair dismissal for misconduct will be considered. Please seek legal assistance, or assistance from State, Federal, or International governmental resources, to make certain your legal interpretation and decisions are correct for your location. Fairness of dismissal for incapacity | Labour Guide. There seems to be a lack of understanding of the clear distinctions that separate the various conditions – in other words, the employer does not know what the charge should be. Dismissal for poor work performance (Incapacity) and misconduct are by definition two distinct and diverse concepts. Poor work performance (incapacity) vs. misconduct. You were offered resources and additional support that you refused. An important factor is that the capacity or incapacity of the employee refers to past performance, and not to an " inability to meet an entry-level requirement for a new or a redesigned job." Patience is also essential as performance-related dismissals, if carried out fairly, always take time (which many senior managers do not seem to have). In situations where the employee is not at fault you will be required to help the employee stay in employment if this is at all reasonably possible. Dismissal for incapacity on the basis of poor work performance. By not supplying a reason, your company can use any and all evidence to defend itself. 1. The result of this uninformed action is that the employee is charged with negligence, poor performance, … You don't want to terminate for cause thinking that you have solid documentation—only to find out later that you don't. There were 3 charges. It’s best practice to write a termination guide. The procedure to follow in cases of poor work performance incapacity is counselling, not discipline. Download the template (compatible with Google Docs and Word Online), or read the text version below. By Gary Watkins who can be contacted at www.caselaw.co.za or www.workinfo.com. This information is for guidance, ideas, and assistance. Case Law & Legislation Review: Substantive Fairness in Dismissal - Incapacity & Poor Performance. Proper documentation so that in the event of non-compliance the ensuing dismissal can be proved to be procedurally and substantively fair. Incapacity is also sometimes referred to as “incapability”, and a dismissal for incapacity means that an employee may be dismissed if he/she is incapable of doing the work which he / she was employed to do. He only knows that what is happening is unacceptable to him, and the employee must be dismissed as quickly as possible. We dealt previously with the fairness of dismissal for misconduct, and we are now taking a look at the fairness of dismissal in cases of incapacity or poor work performance. However, the primary objective of formal performance assessment is to allow for correction before instituting the investigation. The chairperson’s uncontested evidence suggests that the employee was unhelpful and argumentative at the hearing. They are Unsuitability and General Incapacity which will be discussed in the near future. The employee claimed that she had not been given enough particulars for preparation, but the chairperson refused postponement and she left the proceedings. She received a written warning for poor performance in July which was valid for 12 months. Ø Dismissal for unsatisfactory performance or incapacity to perform is the step of last resort in the management of employee performance. Dismissals for incapacity are divided into two classes. Demonstrate an understanding of the legislation underpinning the management of poor performance, absenteeism, sick leave, incapacity and minor misconduct at the workplace. Incapacity because of ill-health differs from poor work performance because there can be no fault attributed to the employee for incapacity due to ill-health or injury. The Covid-19 pandemic is a “ force majeure ”. t Case Law & Legislation Review: Substantive Fairness in Dismissal - Incapacity & Poor Performance, By Gary Watkins who can be contacted at www.caselaw.co.za or www.workinfo.com. This counselling procedure is outlined in section 9, Schedule 8, of the Labour Relations Act. 8.1.1 whether the employee failed to meet performance standards; 8.1.2 whether the employee was aware, or could reasonable be expected to have been aware, of the required performance standards; Print the letter on company stationery and have it signed by the employee's manager or the company owner. SUMMARY OF JUDGMENT: Although the employee was justifiably concerned that she was unable to prepare herself properly because the nature of the evidence was technical and specific, she was not entitled to demand all the evidence before the hearing and then to walk out when she did not get it. The facts were not in dispute on the third charge, and the employee said it was the first time she had done an assignment of that kind, she should have checked up the line to her supervisor. Need a Sample Termination Letter to Fire an Employee? Because poor performance and misconduct differ, the procedures for dealing with them are also different. ‘ it was impermissible for the employer to dismiss the first respondent on grounds of incapacity/poor work performance alone, as it sought to do, without first (a) conducting an investigation to establish the E reasons for the unsatisfactory performance , (b) giving the employee the right to be heard; (c) giving the employee appropriate evaluation, instruction, training, guidance and counselling, and (d) after a … FORMAL PERFORMANCE ASSESSMENT Progressively firmer steps by means of recorded counselling sessions, outlining the consequences of continued lack of improvement, such as a formal poor work performance investigation. The easiest termination meetings are held when the prep has been done in advance. Here the customer had already signed off on the project so there did not appear to be a reckless neglect amounting to gross negligence. On the question of the privacy of disciplinary measures the company ought to inform employees of its approach to standards of conduct and performance even if this is only in a general way so that the staff knows what they are up against. Since disgruntled former employees can and often do use anything you put in writing to take legal action, keep the letter simple and don't state a reason for the termination. Article by: Jacques du Toit. The employee considered that she had been victimized and that she was subjected to racist treatment. It is important that one must differentiate between incapacity poor performance and ill-health or injuries. You can use this termination letter sample as a model. 8.1.1 whether the employee failed to meet performance standards; 8.1.2 whether the employee was aware, or could reasonable be expected to have been aware, of the required performance standards; 8. Hold this meeting as soon as you have the information, documentation, and proof necessary to fire the employee. In the second place, the issue of procedural and substantive fairness for incapacity in relation to both poor work performance and ill-health will be covered. The chairperson of the December enquiry was entitled, on the basis of the evidence before him, to take the July warning into consideration. RSM South Africa: Do you have a recovery plan? In Ubuntu Education Fund v Paulsen NO and Others [2019] 11 BLLR 1252 (LAC), the employee was employed as a supply chain coordinator and was subject to a six month probationary period. Conduct a process of handling employee poor work performance o Understand the relevant legislative principles and requirements in dealing with employee incapacity due to poor work performance; Follow a set of guidelines on actions to be taken should an employee fail to meet performance goals or objectives due to incompetence (poor work performance) During the probationary period, her key performance areas were reduced. The Labour Relations Act, 66 of 1995 (LRA) recognises incapacity and misconduct as grounds for dismissal. Further to incompatibility there are two other types of incapacity besides ill health and poor work performance. Your performance has been documented in three letters of reprimand which you read and signed. The commissioner found that her work amounted to poor performance but not gross negligence. Sanctions short of dismissal. You are dismissed because, despite repeated feedback and performance coaching from your manager, your work performance has not improved. If an employee’s misconduct is serious and if dismissal is possible, the employer needs to hold a disciplinary enquiry. Disclaimer: Please note that the information provided, while authoritative, is not guaranteed for accuracy and legality. The Commissioner decided that the company ought to have terminated the contract on reasonable notice and that in the circumstances, given the likelihood that the employee would not be able to find alternative employment in the week before Christmas; it should have paid her until the end of January. Obviously, this won't apply in cases of ​no-show, no-call job abandonment. Use this sample dismissal letter as a guide, but as in all situations that can result in legal action or other events that are not in an employer's best interests, run your letter by your employment law attorney before you send it to the employee. In this case the person hearing the appeal was the employee’s supervisor; (b) he was the complainant in the enquiry into her performance and (c) he was the chief witness. The appeal was not successful. If an employer allows an appeal, a neutral person must consider it. What not to say when you’re terminating an employee for poor performance Don’t apologize. The commissioner said that she did not consider that the employee had made out a case that the chairperson did not consider the material properly and that he did not exercise an independent judgment although the commissioner agreed that his reasons were somewhat skimpy, however this did not make the hearing unfair. Dismissal: Incapacity. I Incapacity relating to poor [work] performance is prevalent where an employee has persistently failed to meet certain performance standards. Termination Letter for Poor Performance: The success of an organization depends on the commitment and performance of its employees.Hard work and dedication takes the organization to success. 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. For example, in the case of Nationwide Airlines (Pty) Ltd vs Mudau and others (2003, 3 BLLR 279) the employer dismissed Mudau after he failed a flight simulator test. CONTENT Demonstrate an understanding of the legislation underpinning the management of poor performance, absenteeism, sick leave, incapacity and minor misconduct at the workplace. It would have been fairer to apply similar standards of conduct to one class of employee as to the other unless there are sound operational reasons why this ought not to be. You are dismissed owing to your constant poor performance. Ms. Margaret O'Malley18361 Cliff StreetSparta, NJ 07871. If you state the cause, you may be limited in court to only using that reason for the termination. INCAPACITY Introduction. Guidelines in cases of dismissal for poor work performance Any person determining whether a dismissal for poor work performance is unfair should consider- ... Incapacity: Ill health and injury. ( j) Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period. Dismissal will be with notice as poor performance is not gross misconduct. Dismissal for incapacity on the basis of poor work performance. If an employee’s misconduct is serious and if dismissal is possible, the employer needs to hold a disciplinary enquiry. 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