Poor Performance Versus Misconduct: Bread and Butter Issues [Featuring Salt and Pepper]

Three possible legitimate grounds for dismissal

The South African labour law recognizes three grounds on which a termination of employment might be legitimate. These are: the conduct of the employee, the capacity of the employee, and the operational requirements of the employer’s business. Dismissals are the bread and butter of labour law practitioners (attorneys, advocates, labour consultants and the like).

The reason for termination and the manner in which it is effected, may be considered to be the salt and pepper of dismissals respectively. The three termination grounds [i.e. the salt as ingredient of the dismissal] are distinct from one another. Dismissals for operational reasons are based on reasons outside of the control of the employee. For that reason, these dismissals are referred to as “no fault dismissals.” Capacity dismissals can either be because of poor performance, ill health, or injury on the part of the employee. Even though the employee may not have been the cause of the ill health or injury, this ground is attributed to the employee.

Poor performance is always attributed to the employee. The employee must however, be given guidance, training and an opportunity to improve on his performance.

Conduct as a ground for dismissal is based on the employee’s misconduct, as opposed to his poor performance of the duties and responsibilities that are given to him. Examples of dismissable misconduct are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer or a fellow employee and gross insubordination.

Schedule 8 of the LRA

Schedule 8 of the Labour Relations Act, Act 66 of 1995 (as amended), [“the LRA”] is entitled: CODE OF GOOD PRACTICE: DISMISSAL. Schedule 8 is divided into the following parts: Item 1 is an introduction and item 2 sets out fair reasons for dismissal.

Items 3 to 7 deal with misconduct: Item 3 provides disciplinary measures short of dismissal while Item 4 provides for a fair procedure to be followed when dealing with misconduct. Item 5 deals with disciplinary records and Item 6 deals with dismissals and industrial action. Lastly, Item 7 provides guidelines in cases of dismissal for misconduct.

Items 8 and 9 deal with poor performance: Item 8 provides guidelines to employees who appoint employees on a probationary period while Item 9 gives guidelines to employers in cases of dismissal for poor work performance

Lastly, Items 10 and 11 provide for incapacity as a result of Ill health or injury and provide guidelines in cases of dismissal arising from ill health or injury.

Fair Procedure

Schedule 8 requires a fair procedure to be adopted whenever one or more employees are dismissed. The procedure may be seen as the pepper requirement for a fair dismissal. Employers frequently get confused with salt and pepper issues, make mistakes in dismissing their employees, and end up ensuring that bread is put on the labour practitioners’ tables. Some employers want their bread buttered on both sides and end up with egg on their faces.

Here are a few hints to avoid costly mistakes: Make sure what you are dealing with: an incapacity or a misconduct issue. For example, Dereliction of duty is usually categorized as misconduct, not poor performance. The procedures for dealing with non-performance are different to those for misconduct. An employee who is on probation is more difficult to dismiss than one who is not on probation. This is because additional measures are required of employers, in terms of Item 8 of Schedule 8, when dealing with poor performance. Regular monitoring, training and evaluation is required- this is not the case with employees who are not on probation. On the other hand, you cannot dismiss an employee for poor performance without providing the employee with a reasonable opportunity to improve his performance, coupled with a reasonable period of time to improve. Many employers fall foul of this requirement.

Rudolf Kuhn – Labour Law Attorney, Pretoria, November 2017