Fairness of dismissal for incapacity

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. 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." (Fawu & others v SA Breweries [2004] 11 BLLR 1093 (LC) at 67)

Poor work performance, or incapacity, should be distinguished from the misconduct and operational requirements. It is possible that in practice, there are cases where it could be a grey area. However, specific procedures must be followed.

It is accepted that the employer is entitled to set the work performance standards, and the courts will not intervene unless those standards are grossly unreasonable. It is accepted also that it falls within the employer's jurisdiction to assess whether or not those standards have been met, and again the courts will not interfere unless the assessment is grossly unreasonable.

In SACCAWU v Pep Stores, it was noted that the Code of Good Practice-Dismissal does not require work performance standards to be written into the contract of employment, because the duty to display a reasonable efficiency is an implied term of the contract.

This view was endorsed by the CCMA in Crawford v Grace Hotel, where it was held that if the employer's assessment of an employee is genuine, is made in good faith, and is founded on objectively ascertainable criteria, the courts would probably not interfere.

An employer is required to make an assessment before dismissing an employee for lack of skill or failure to meet work performance standards. Any judgement made by the employer, without such an assessment, will not be viewed as objective or reasonable.

An attempt must be made to establish the reason for the employee's shortcomings, and except in instances where the incompetence is irremediable, an attempt must be made to assist the employee to overcome the problem. This is now reflected in Schedule 8 of the Labour Relations Act.

In Gostelow v Datakor Holdings, the court supported the view that, during a careful appraisal of the employee's performance, the employer must discuss its criticism with the employee, warn the employee of the consequences of there being no improvement, and give a reasonable opportunity to improve.

It was stated further that the appraisal should show whether the employee's performance can be improved with advise, guidance and additional training.

And - very importantly - the court observed that such an appraisal may also highlight weaknesses in the support that management has provided.

It is therefore clear that there are very specific procedures to be followed in addressing matters of incapacity or poor work performance, and it is blatantly clear that issues of poor work performance cannot and should not be addressed by normal disciplinary procedures.

Should an employer to choose to do that, there is no doubt that a ruling of unfair dismissal will be made.

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