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What does dismissal for poor work performance mean? Tiekie Mocke, Manager: Legal Department at MISA, sheds some light on the contentious subject.
Poor performance and a performance standard
The Code of Good Practice: Dismissal stipulates that prior to dismissal for poor work performance an employer needs to prove that an employee failed to meet a “performance standard” after being given a fair opportunity to attain the required standard.
Item 9 of the Code of Good Practice requires that when an employee is charged with poor performance, fairness dictates a determination of awareness.
That is:
- Was the employee aware of the required performance standard?
- Was the employee given a fair opportunity to meet the required performance standard?
- Was the required performance standard reasonable?
- Was the dismissal a fair sanction in the circumstances.
Awareness
The Merriam-Webster dictionary defines awareness as “having or showing realisation, perception, or knowledge”.
The norm in the Motor Industry is to reward good performance through either an incentive structure or a commission structure. Everyone reading this will agree that there is not one salesperson who does not know the required performance standard. That is the target, the aim of every salesperson.
To safeguard employees the MIBCO Main Collective Agreement prescribes that a commission structure can only be changed after a four-week written notice period and consultation.
Fair Opportunity
The Labour Appeal Court in NUMSA & another v Schnaier Metal Industries (Pty) Ltd held that there is a significant difference between “some opportunity” and “fair opportunity”. Fair opportunity was held to involve an opportunity for reflection and, if requested, for consultation.
In sales, I believe, “performance counselling” or “performance review” became a swear word. It is watered down to a meeting between a salesperson and manager where the target is reconfirmed and the salesperson instructed to reach that target before month-end. That is regardless of whether month-end is still four weeks away or four days away. That is not “fair opportunity”!
Reasonable
In a CCMA dispute, Honey v Special Cables (Pty) Ltd, the arbitrator held that reasonableness should be “decided by the surrounding circumstances”. In essence apples should be compared with apples.
Reasonableness is determined by the current market; the performance of sales colleagues; and taking into consideration the reason(s) the target was not/could not be reached.
Disciplinary Action
Poor performance must be addressed through a process of counselling. The employee should play a vital and active role to show that they are not a “sluggard”, but a business person struggling to reach a set standard as a result of unreasonableness or any other legit reason(s).
Merely accepting a letter from the employer that reiterates the standard will be to the employees’ detriment. If you know the standard and someone or something prevents you from reaching that standard, you should speak up. Ignoring unreasonableness or reducing yourself to a spectator during these sessions can ultimately result in dismissal.
Be diligent and take control.
Remember, MISA is just a phone call away.
Article by Tiekie Mocke, MISA’s Manager, Legal Department.
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