No excuses for poor performance

Ivan Israelstam

Dismissal of employees and company executives for poor performance can be justified by the fact that employees are paid to do their jobs properly. While the law allows employers to decide what the proper standards of performance are, the employer will, if taken to the CCMA, be required to prove that:

- the employee knew what the required performance standard was;
- the standard was realistically achievable;
- the employee was given sufficient opportunity to achieve the standard; and
- it was the employee's fault that he/she failed to achieve the standard.

We look at each of these four requirements:

• 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, reach R2-million turnover per year, make 40 appointments per month, build 25 houses per year, pack 100 boxes per month or make three widgets per hour.

• 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 counselled could be disciplined and possibly dismissed depending on the circumstances. However, the employer who is unable to prove the above would be in trouble at the CCMA. In the case of White v Medpro Pharmaceutica (2000, 10 BALR 1182) the employee failed to meet her targets in nine out of 10 months. The CCMA nevertheless found her dismissal to be unfair because the employer had set targets that were not achievable in the CCMA's view.

• 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 six-month probationary basis and is fired because his/her data capture work was not up to standard. The decision to impose a six-month probation period suggests that the new employee will need more than two weeks to get up to speed.
  
  - 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 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; or
  nsome other reason beyond the employee's control.
  
  In Robinson v 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 have a great deal of homework to do. That is, they need to:
  
  - set targets that are proven to be reasonable;
  
  - adjust targets when changed circumstances dictate this;
  
  - give employees a real chance to achieve the desired performance level; and
  - 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 is within its rights to dismiss a poor performer it should first get advice from a reputable labour law expert.
  • Our appreciation to Ivan and The Star newspaper for permission to publish this article.
  • For more information contact Ivan Israelstam on This e-mail address is being protected from spambots. You need JavaScript enabled to view it