Managerial dismissals for poor performance normally follow incapacity processes

Tony Healy

The Labour Relations Act (LRA), and Schedule 8 in particular, does not differentiate between senior and junior staff when contemplating the pre-dismissal procedures which must be adhered to render such a dismissal fair. The necessary, although at times tedious, process which must be followed is to counsel the under-performer, ensuring that they are timeously appraised of the employer's dissatisfaction and given reasonable time to meet attainable goals.

However, in the recent Labour Court matter of New Forest Farming CC v Cachalia & others [J3806-01) exceptions to this otherwise required procedure were highlighted as being grounds which may justify deviation from the Schedule 8 counselling process prior to the dismissal of a senior manager for poor work performance.

The farm owner, who resided in Zambia permanently, had dismissed the farm manager of 10 years for poor work performance in that the farm had only been self-sufficient in one year out of ten, with substantial losses being suffered over time.

The farm manager referred the mater to the CCMA which held that whilst there was evidence that the manager's work performance was indeed sub-standard, there was no evidence to indicate that he was ever made aware of the required performance standard. The employer then took the matter on review to the Labour Court claiming that the CCMA commissioner who found in favour of the farm manager at the arbitration hearing " committed a gross irregularity by reaching the conclusion that she did in an irrational and thus unjustifiable manner".

Referring to the Labour Appeal Court case of Somyo v Ross Poultry Breeders (Pty) Ltd, the judge held that there are two distinct occasions when "the court held that the normal requirement to appraise, warn, and allow an opportunity to improve performance may not apply".

In the first instance, in circumstances wherein the manager is of such disposition and level of knowledge and experience as to know instinctively whether they are meeting the performance requirements et by the employer. Put differently, the manager has the capacity to judge for his or herself whether they are meeting the required goals.

Secondly, the so-called normal counselling procedure need not be complied with when addressing "employees whose jobs require of them a degree of professional skill of an extremely high nature and where the potential consequences of the smallest departure from that high standard would be catastrophic". The judge found in favour of the employer and referred the matter back to the CCMA to be re-heard.

In the final analysis, whilst the above exceptions do indeed justify deviation from the standard pre-dismissal counselling procedure for poor work performance, it ought to be borne in mind that the test in respect of each exception is somewhat exacting and will not easily pass scrutiny.

However, should the circumstances align with the noted exceptions, waiver of the normal pre-dismissal counselling process in cases of managerial dismissal for poor work performance would be justified.