workl@w’s disciplinary skills workshop

Workl@w

Copyright: Workl@w www.worklaw.co.za

Version 09

WORKL@W’S

DISCIPLINARY SKILLS WORKSHOP

DELEGATES’ MANUAL

IMPORTANT COPYRIGHT NOTICE: This training material is owned by Worklaw and may only be used by current subscribers to Work law within their organisations. Any unauthorised use of this material, including i ts use in training provided on a commercial basis, will constitute an infringement o f copyright. Go to www.worklaw.co.za to subscribe to Worklaw.

https://www.worklaw.co.za/

Workl@w


Version 09

2


TABLE OF CONTENTS

MODULE 1: FAIR DISCIPLINARY ACTION – THE LAW

1. INTRODUCTION 2. SOURCES OF FAIRNESS 3. APPLYING CORRECTIVE DISCIPLINE 4. PROCEDURAL AND SUBSTANTIVE FAIRNESS 5. PROCEDURE FOR NON-DISMISSABLE OFFENCES 6. PROCEDURE FOR DISMISSABLE OFFENCES 7. MISCONDUCT 8. INCAPACITY 9. PROBATION MODULE 2: OBTAINING AND ASSESSING EVIDENCE 1. INTRODUCTION 2. APPLICABILITY OF RULES OF EVIDENCE 3. WHAT CONSTITUTES EVIDENCE? 4. ADMISSIBILITY OF EVIDENCE 5. CREDIBILITY OF EVIDENCE 6. TESTING THE EVIDENCE

Workl@w


Version 09

3


TABLE OF CONTENTS (Cont.)

MODULE 3: PREPARING FOR A DISCIPLINARY ENQUIRY 1. INTRODUCTION 2. STAGES IN THE PROCESS 3. INVESTIGATING AND EVALUATING 4. INITIATING THE DISCIPLINARY PROCESS 5. PLANNING FOR THE ENQUIRY 6. CONDUCTING THE ENQUIRY MODULE 4: CONDUCTING A DISCIPLINARY ENQUIRY 1. INTRODUCTION 2. ROLEPLAY OF PROCESS 3. MITIGATING/AGGRAVATING FACTORS 4. MAKING THE DECISION 5. CHALLENGING THE OUTCOME 6. CLOSURE AND FEEDBACK

Workl@w


Version 09

4

WORKL@W’S


DELEGATES’ MANUAL

MODULE 1: FAIR DISCIPLINARY ACTION – THE LAW 1. INTRODUCTION 2. SOURCES OF FAIRNESS 3. APPLYING CORRECTIVE DISCIPLINE 4. PROCEDURAL AND SUBSTANTIVE FAIRNESS 5. PROCEDURE FOR NON DISMISSABLE OFFENCES 6. PROCEDURE FOR DISMISSABLE OFFENCES 7. MISCONDUCT 8. INCAPACITY 9. PROBATION

Workl@w


Version 09

5

1. INTRODUCTION 1.1 EXPLAINING THE MODULES

MODULE 1 MODULE 2 MODULE 3 MODULE 4 FAIR DISCIPLINARY ACTION

OBTAINING AND ASSESSING EVIDENCE

PREPARING FOR A DISCIPLINARY ENQUIRY

CONDUCTING A DISCIPLINARY ENQUIRY (ROLEPLAY)

YOU ARE HERE

DISCIPLINARY SKILLS

WORKSHOP

Workl@w


Version 09

6

1. INTRODUCTION 1.2 GROUNDRULES

Discussion

- times for starting, finishing and breaks - control of cellphones - smoking rules - other applicable groundrules?

Understanding and Applying the Training Methodology

- Every delegate will be encouraged to participate. - Delegates will learn as much from each other as from the

trainer, through sharing their experience and knowledge. - The workshop makes extensive use of interactive training

methods (roleplays, exercises, case studies etc) to maximise participation.

- We believe this is the best way and the most enjoyable way to ensure that learning takes place.

Course Material

- Delegates will be given handouts during the workshop to supplement the material in their files. The handouts must be filed in numerical order.

- The handouts are not model answers, and merely serve as a “top up” after an issue has been discussed during the workshop.

- The course material is a source of reference for delegates after the workshop. The workshop may not cover every aspect of the written material.

Workl@w


Version 09

7

EXERCISE

1. INTRODUCTION 1.3 SETTING OBJECTIVES Set out below what you hope to achieve during this module:

Workl@w


Version 09

8

HANDOUT

1. INTRODUCTION 1.3 SETTING OBJECTIVES

The primary objectives of this module are to unders tand and be able to apply the following:-

The law of unfair dismissal, dealing with misconduct and incapacity; Procedural and substantive fairness requirements;

The concept of corrective discipline;

The procedure for non dismissible offences;

The procedure for dismissible offences.

Workl@w


Version 09

9

EXERCISE

2. SOURCES OF FAIRNESS Labour law and labour relations is all about applying ‘fairness’ – but are there objective measures to determine what is fair? This can be derived from various sources mentioned below. If you were the chairperson of a disciplinary hearing having to decide whether it would be fair to dismiss an employee, and union / company representatives appearing before you referred to any or all of the following, which would you feel would be the more important authority? List the following in order of most to least important: - Labour Relations Act; - Code of Good Practice: Dismissal; - Labour Court decisions; - rulings by previous disciplinary chairpersons. - S. A. Constitution; - negotiated disciplinary procedures; - management imposed disciplinary procedures; Taking the above into consideration, choose whether the following statements are true or false:- TRUE FALSE

The Code of Good Practice has equal standing with

the LRA, and applies if there is conflict between them.

To ensure consistency, you should follow previous

chairperson’s rulings even if they conflict with the Code of Good Practice.

The failure to comply with your own disciplinary

procedure will normally make the disciplinary action unfair.

The Code of Good Practice is a guide to applying

the law of unfair dismissal and may be departed from in appropriate circumstances.

Workl@w


Version 09

10

HANDOUT

2. SOURCES OF FAIRNESS As a chairperson of a disciplinary hearing, you have to apply ‘fairness’ as determined from the following sources, in order of priority: - S. A. Constitution; - Labour Relations Act; - Labour Court decisions; - negotiated disciplinary procedures; - Code of Good Practice: Dismissal; - management imposed disciplinary procedures; - rulings by previous disciplinary chairpersons. Taking the above into consideration, choose whether the following statements are true or false:- TRUE FALSE

The Code of Good Practice has equal standing with

the LRA, and applies if there is conflict between them

To ensure consistency, you should follow previous

chairperson’s rulings even if they conflict with the Code of Good Practice.

The failure to comply with your own disciplinary

procedure will normally make the disciplinary action unfair

The Code of Good Practice is a guide to applying

the law of unfair dismissal and may be departed from in appropriate circumstances

X

X

X

X

Workl@w


Version 09

11

EXERCISE 3. APPLYING CORRECTIVE DISCIPLINE

The following extract comes from the Code of Good P ractice: Dismissal - Item 3 (2)

“The Courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings.”

Please consider the following questions. (a) What does this mean? (b) Does an employer always have to be given warnin gs before more

serious disciplinary action is taken? Why?

(c) At some point an employer would no longer be ex pected to apply corrective discipline: Try to describe in one sente nce what the criteria or ‘yardstick’ would be, in deciding whether it wou ld be fair to dismiss someone?

Workl@w


Version 09

12

HANDOUT

3. APPLYING CORRECTIVE DISCIPLINE Answers to the questions from the previous page:

(a) What does this mean?

This extract emphasises that the primary purpose of disciplinary action is to improve or correct employees’ behaviour and performance, to ensure they comply with the organisation’s required standards. What this means in practice is that informal advice and counselling, which happen all the time at the workplace, are recognised as the primary means of managing employees’ behaviour and performance. It is the employer’s responsibility to take steps necessary to ensure that employees comply with the required standards, rather than to terminate the employee’s employment at the earliest opportunity. Item 1(3) of the Code of Good Practice: Dismissal states that:-

“Whilst employees should be protected from arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees.”

(b) Does an employer always have to be given warnin gs before more

serious disciplinary action is taken? Why?

No the Code recognises that the principle of corrective discipline does not mean that an employee can never be dismissed for a first offence. Item 3(4) states:

“Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of such misconduct, subject to the rule that each case be judged on its merits, are gross dishonesty or willfull damage to the property of the employer, willfull endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer, and gross insubordination.”

(c) Describe in one sentence what the criteria or ‘ yardstick’ would be, in deciding whether it would be fair to dismiss someon e?

The test to be applied is whether the employer is justified in the view that the employee’s actions have made the continued employment relationship intolerable – see reference to item 3(4) above.

Workl@w


Version 09

13

4. PROCEDURAL AND SUBSTANTIVE FAIRNESS 4.1 OVERVIEW

Section 185 of the Labour Relations Act gives employees the right not to be unfairly dismissed. Section 188 says that a dismissal is unfair if the employer fails to prove-

(a) “that the reason for dismissal is a fair reason—

(i) related to the employee’s conduct or capacity; or (ii) based on the employer’s operational requirements; and

(b) that the dismissal was effected in accordance with a fair procedure.”

Substantive fairness

This is the reason for the dismissal i.e.”the Why?” Procedural fairness

This is the manner in which the employer dealt with the matter ie “the How?”

Automatically Unfair dismissals

Section 188 of the Labour Relations Act gives the employer the discretion to dismiss in appropriate circumstances, provided the employer has a good reason and follows a fair procedure.

Section 187 however recognises that there are certain reasons for dismissal that can never be fair. If an employer dismisses an employee for one of these reasons, it is automatically unfair .

Workl@w


Version 09

14

4. PROCEDURAL AND SUBSTANTIVE FAIRNESS 4.2 AUTOMATICALLY UNFAIR DISMISSALS

Automatically unfair dismissals are dealt with in Section 187 of the Act, and include dismissals for the following reasons:

Participating in a protected strike

Refusing to do the work of a person taking part in a protected strike, unless the work is essential for health and safety reasons.

Refusing to accept an employer’s demand in respect of any matter of mutual interest between employer and employee.

Dismissals for the reason that an employee exercised his/her rights in terms of the Act.

An employee’s pregnancy , intended pregnancy, or any reason related to her pregnancy.

Unfair discrimination on any arbitrary ground including but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.

A transfer, or a reason related to a transfer, in terms of Section 197 or 197A

A contravention of the Protected Disclosures Act 20 00, on account of an employee having made a protected disclosure defined in that Act.

There are two modifying sections to the unfair disc rimination provisions above.

1. A dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job.

2. A dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

Workl@w


Version 09

15

EXERCISE

5. PROCEDURE FOR NON-DISMISSABLE OFFENCES

Section 186(2)(b) of the LRA states that unfair dis ciplinary action short of dismissal is an unfair labour practice. This means such action must also be procedurally and substantively fair. Most disciplinary procedures do not require a forma l disciplinary hearing prior to giving an employee a written warning (although i t’s sometimes required for final warnings). The purpose of this exercise is to identify the steps to be followed by a manager to ensure that a fair procedu re is followed in giving a written warning to an employee. It is also important to note that in terms of Item 4(2) of the Unfair Dismissal Code of Good Practice, disciplinary action should n ot be instituted against a shopsteward or union office bearer without first “ informing and consulting” the union. We deal with this in more detail in the next section covering procedural fairness for dismissable offences, but n ote that it equally applies any disciplinary action, whether resulting in dismi ssal or not. Exercise: Set out below the procedural steps to fol low to ensure a fair procedure in giving a written warning, in the seque nce in which these events would normally occur.

Workl@w


Version 09

16

HANDOUT

5. PROCEDURE FOR NON-DISMISSABLE OFFENCES

Most disciplinary procedures do not require a forma l disciplinary hearing to be followed prior to giving an employee a written w arning. We have set out below the steps to be followed by a manager to ensu re that a fair procedure is followed in giving a written warning to an emplo yee, in the sequence in which they normally occur. 1. Gather information 2. Inform the employee within a reasonable period of the alleged offence, and

his/her rights in dealing with the matter. 3. Allow the employee to be assisted by a shopsteward/fellow employee at all

stages of the process. 4. Inform the employee of the alleged facts and allow the employee the

opportunity to state a case. 5. Determine disputes of fact informally but decisively, gathering any further

information necessary to do this. 6. Consider mitigating/aggravating factors. 7. Decide whether any disciplinary action is necessary. 8. Inform the employee of any disciplinary action to be taken, giving brief

reasons for the decision. 9. Emphasise the consequences of a further transgression within the period of

a warning. 10. Advise the employee of any rights of appeal. 11. Record the disciplinary action in the correct manner.

Workl@w


Version 09

17

EXERCISE

6. PROCEDURE FOR DISMISSABLE OFFENCES

Item 4 of the Code of Good Practice: Dismissal st ates as follows:

4. Fair procedure (1) Normally, the employer should conduct an investigation to determine whether

there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.

(2) Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.

(3) If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement.

(4) In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures.

Refer to the extract above from the Code of Good Pr actice: Dismissal, and answer the questions below:

1. Item 4(1) says the employer should conduct ‘an i nvestigation’ to determine whether there are grounds for dismissal, and that t his does not need to be a formal enquiry. What does this mean? Does it me an that an employer can conduct an investigation in place of an enquiry?

2. Outline the phases of a typical enquiry. 3. Item 4(1) requires the employer to notify the em ployee of the allegations in

advance. How much detail does the employer have t o give?

4. Item 4(1) says an employee should be allowed the opportunity to state a case in response to the allegations. Spell out what this means in practice.

5. List the elements of a procedurally fair enquiry . 6. Set out in practical terms what an employer shou ld do to comply with item 4(2).

Workl@w


Version 09

18

HANDOUT

6. PROCEDURE FOR DISMISSABLE OFFENCES

Refer to the Code of Good Practice: Dismissal, and answer the questions below:

1. Item 4(1) says the employer should conduct an in vestigation to determine whether there are grounds for dismissal, and that this does not need to be a formal enquiry. What does this m ean? Does it mean that an employer can conduct an investigation in pl ace of an enquiry?

We believe the Code is poorly drafted in this respect and misleading. It is clear from Labour Court decisions, arbitrator’s awards and established practice that procedural fairness effectively requires some form of an enquiry. The reason for saying the enquiry does not need to be formal, was to give a degree of flexibility and discretion in conducting the enquiry (it is not meant to be a criminal trial), provided the employee is given a fair opportunity to respond to the allegations made.

2. Outline the phases of a typical enquiry.

We suggest that a relatively structured approach to enquiries should be adopted, to ensure consistency and fairness:

• Introduction : chairperson explains the process.

• Opening statements: put the allegations to the employee and allow the employee to respond. If the employee admits guilt, move directly to assessing mitigating/aggravating factors

• Evidence phase: the employer presents its case and the

employee responds, on the issues in dispute.

• Finding on the facts: chairperson makes a finding whether

the employee is guilty of the allegations. If not guilty, that’s the end of the matter.

• Mitigation / aggravation: If the employee is found guilty, allow the

parties to submit any mitigating / aggravating factors that may influence the sanction to be applied

• Finding on sanction : chairperson decides what sanction is to

be applied.

Workl@w


Version 09

19

HANDOUT

6. PROCEDURE FOR DISMISSABLE OFFENCES (Continued) 3. Item 4(1) requires the employer to notify the em ployee of the allegations

in advance. How much detail does the employer hav e to give? The employer would have to give sufficient detail to enable the employee to

understand the nature and extent of the allegations and to prepare a case in response. In cases involving allegations of financial irregularities, for example, sufficient detail of these allegations would have to be provided to enable the employee to be able to prepare to answer the charges. It is not however necessary to provide the employee with so much detail before the enquiry, that you are effectively giving all the evidence in advance. The employee must know enough, in order to be able to know how to plead and what charges he/she is going to have to defend.

4. Item 4(1) says an employee should be allowed the opportunity to state a case in response to the allegations. Spell out wh at this means in practice.

The opportunity to dispute versions given by management

The opportunity to question witnesses called and to challenge evidence led by management

The opportunity to present evidence and to call witnesses in support of the employee’s case

The opportunity to present argument in respect of the factual finding to be made on the allegations and on the sanction to be applied.

The opportunity to provide mitigating factors to be taken into account before any sanction is decided.

Workl@w


Version 09

20

HANDOUT

6. PROCEDURE FOR DISMISSABLE OFFENCES (Continued)

5. List the elements of a procedurally fair enquiry .

A company must comply with its own disciplinary code and procedure. The employer should notify the employee of the allegations using a

form and language that the employee can reasonably understand. There should be a neutral or impartial chairperson The employee should be allowed the opportunity to state his/her case

in response to the allegations. The employee should be entitled to a representative. There should be interpretation where necessary. The employee should be entitled to cross-examine company

witnesses. The employee should be entitled to call his/her own witnesses. If there is a finding of guilty the employee should be entitled to

advance factors in mitigation. The employee should be notified in writing of the decision that has

been made and given brief reasons for the decision. If an employee is dismissed the employee should be reminded of

his/her right to appeal or to refer to the matter to the CCMA or a bargaining council.

6. Set out in practical terms what an employer shou ld do to comply with item 4(2).

The Code says an employer should inform and consult the union prior to discipline being instituted against a trade union representative (shop steward) or union official/office bearer. At what stage is discipline “instituted”? Is it in giving notice of the enquiry or in deciding the outcome of the enquiry? We believe it is the former but it is difficult to consult before you even know all the facts!

In order to comply with item 4(2) we suggest one of the following options:-

(a) inform the union in advance of the enquiry and consult as best you can at that stage, without having had any evidence led at the enquiry. Advise the union that you will consult with it further, prior to taking any decision on the sanction to be applied.

or (b) Inform the union in advance of the enquiry and allow the union to

represent the person at the enquiry, on the understanding that this will achieve compliance with item 4(2). Even though this is not explicitly provided for in the Code, we recommend that this is the best method of complying with item 4(2).

Workl@w


Version 09

21

7. MISCONDUCT: DISMISSAL GUIDELINES

Item 7 of the Code of Good Practice: Dismissal sta tes the following:

“7. Guidelines in cases of dismissal for misconduct .

Any person who is determining whether a dismissal for misconduct is unfair should consider –

(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and

(b) if a rule or standard was contravened, whether or not-

(i) the rule was a valid or reasonable rule or standard;

(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;

(iii) the rule or standard has been consistently applied by the employer; and

(iv) dismissal was an appropriate sanction for the contravention of the rule or standard”.

In considering whether the sanction of dismissal i s appropriate, items 3(4) to

3(6) of the Code of Good Practice: Dismissal shoul d be taken into account :

“(4) Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or willful damage to the property of the employer, willful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188.

(5) When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.

(6) The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration”.

Workl@w


Version 09

22

EXERCISE 7. MISCONDUCT: DISMISSAL GUIDELINES

Consider the mini case studies below: (a) Identify which criteria from item 7 on the prev ious page need to be

considered in each case, and then - (b) having regard to item 3 on the previous page, d ecide whether the

dismissal in each case is fair. 1. A heavy duty driver for a transport company is dismissed for a first offence

of being drunk on duty. He claims his dismissal is unfair as a cleaner in the canteen was given a final written warning for the same first offence last year.

2. An employee is dismissed for the theft of company property. She says

her dismissal is unfair as the property in question was only worth R7,50, and she is an unmarried mother of 3 children.

3. A salesperson is dismissed for being highly abusive and aggressive

towards a member of the public. She claims that staff have never been given any training in customer relations and the company has never issued a policy setting out how customers should be treated.

4. A company secretary is dismissed for having an unauthorised extra ½

hour lunch break to attend a friend’s birthday lunch, and which caused her to forget to book her manager’s hired car on an occasion when he flew to another city to attend an important meeting. The manager then missed the meeting. She has 12 years’ service and this is the first occasion there has been any problem at work.

5. A packer in a clothing company is dismissed for stealing money from the

change room of the local golf club over the weekend. 6. The bookkeeper of the clothing company is dismissed for stealing money

from the change room of the local golf club over the weekend

Workl@w


Version 09

23

HANDOUT 7. MISCONDUCT: DISMISSAL GUIDELINES

Consider the mini case studies:

(a) Identify which criteria from item 7 on the prev ious page need to be considered, and then-

(b) having regard to item 3, decide whether the di smissal is fair.

NO. CRITERIA TO CONSIDER DISMISSAL FAIR? YES NO 1. The key issue is the question of consistency , taking into

account the nature of the job and the circumstances of the infringement. Based on these factors, it would not be unfair for the employer to impose different sanctions in these different circumstances. The consequences of a heavy duty driver being drunk at work are severe.

√

2. The appropriateness of the sanction , the circumstances of the infringement (i.e. the low value of the property stolen) and the employee’s personal circumstances should be considered. Generally theft has been regarded as a dismissible offence irrespective of the value of the goods in question and the personal circumstances of the employee. You may however find that this approach is not followed by all arbitrators.

√

3. The key issue is whether the employee could be expected to have been aware of the required standard. Despite the lack of training and policies, the employee ought to have been aware that it is completely unacceptable to be highly abusive and aggressive towards a member of the public.

√

4. The appropriateness of the sanction : length of service, previous disciplinary record and the circumstances of the infringement should be considered. In this case the sanction of dismissal is too harsh for this first offence

X

5. The key issue is whether the employee broke a workplace rule? Arguably, the theft from the change room of the local gold club probably has nothing to do with the packer’s employment.

X

6. The key issue again is whether the employee broke a (perhaps implied) workplace rule? Although the offence happened off company premises and outside working hours, it has relevance to the workplace in that it impacts significantly upon the employer’s trust in the bookkeeper at work. The employer cannot be expected to continue to employ a bookkeeper in a position of trust in these circumstances.

√

Workl@w


Version 09

24

8. INCAPACITY

8.1 POOR WORK PERFORMANCE Items 8(2) to 8(4) of the Code of Good Practice: D ismissal state as

follows:

“(2) After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has –

(a) given the employee appropriate evaluation, instruction,

training, guidance or counselling; and

(b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.

(3) The procedure leading to dismissal should include an

investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.

(4) In the process, the employee should have the right to be heard

and to be assisted by a trade union representative or a fellow employee”.

Item 9 of the Code of Good Practice: Dismissal sta tes as follows:

Any person determining whether a dismissal for poor work performance is unfair should consider-

(a) whether or not the employee failed to meet a performance standard; and

(b) if the employee did not meet a required performance standard whether or not-

(i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;

(ii) the employee was given a fair opportunity to meet the required performance standard; and

(iii) dismissal was an appropriate sanction for not meeting the required performance standard.

Workl@w


Version 09

25

EXERCISE

8. INCAPACITY 8.1 POOR WORK PERFORMANCE: CASE STUDY

1. Consider the facts set out below and decide whet her the dismissal

is fair? Five salespersons are employed in a department. Four have

consistently achieved sales targets, but the fifth salesperson has significantly under performed over the past three months. After the first month, the employee concerned was called and told that her performance was unacceptable and would have to improve. After the second month of sub-standard performance, the employee was again called in and given a final warning that unless her performance improved by the end of the next month, she faced dismissal.

Although there was some improvement in the third month, performance was still not at the required level, and the employee was dismissed following a hearing. The employee’s defence all along has been that she is working as hard as ever, but there are changes occurring in the market place and the old traditional sales strategies are just not working for her. She is the oldest member of the sales team, and is perhaps not as well equipped as the other four sales persons to implement a range of selling strategies. There is no other suitable position in which the salesperson can be placed.

2. Having regard to items 8(3) and 8(4) of the Code of Good Practice:

Dismissal, what process should be followed to ensu re procedural fairness in a dismissal for poor work performance? Why?

Workl@w


Version 09

26

HANDOUT

8. INCAPACITY 8.1 POOR WORK PERFORMANCE: CASE STUDY

1. Consider the facts set out on the previous page and decide whether the dismissal is fair?

It is clear that:

(a) the employee has failed to meet her performance standard; (b) there appears to be a reasonable standard, being met by all members

of the sales team; (c) the employee was made aware of the required standard and the

consequences of failing to achieve the standard; (d) the employee was given a period within which to meet the required

standard.

It is arguable however whether the employee was given a fair opportunity to meet the required standard. In order for a dismissal for poor work performance to be fair, an employee should be given the required assistance in regard to training, guidance, instruction etc, to assist the employee to meet the required standard. It is not good enough to just place the employee on terms and warn of the consequence of failing to meet the required standard. In the example given, it seems that interaction with other members of the sales team, and training on different sales strategies, may well solve the problem. For these reasons, we believe that the dismissal is unfair.

2. Having regard to items 8(3) and 8(4) of the Code of Good Practice: Dismissal, what process should be followed to ensur e procedural fairness in a dismissal for poor work performance? Why?

We strongly recommend that once the employer moves beyond the guidance

and counselling phase and is contemplating dismissal for poor work performance, a hearing should be held that essentially follows the same procedure as a misconduct enquiry. Disputes of fact can arise in incapacity dismissals as much as in a misconduct dismissal, and are best dealt with at an enquiry where evidence can be provided and challenged.

Workl@w


Version 09

27

8. INCAPACITY 8.2 ILL-HEALTH AND INJURY

Items 10 and 11 of the Code of Good Practice: Dism issal state as follows: 10. Incapacity : Ill health and injury.

(1) Incapacity on the grounds of ill health or injury may be

temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee’s disability.

(2) In the process of the investigation referred to in subsection (1)

the employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee.

(3) The degree of incapacity is relevant to the fairness of any

dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider.

(4) Particular consideration should be given to employees who are

injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.

Workl@w


Version 09

28

8. INCAPACITY 8.2 ILL-HEALTH AND INJURY (Continued)

11. Guidelines in cases of dismissal arising from ill health or injury.

Any person determining whether a dismissal arising from ill health or injury is unfair should consider- (a) whether or not the employee is capable of performing the work;

and (b) if the employee is not capable-

(i) the extent to which the employee is able to perform the work;

(ii) the extent to which the employee’s work circumstances

might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee’s duties might be adapted; and

(iii) the availability of any suitable alternative work.

Workl@w


Version 09

29

9. PROBATION Item 8 of the Code of Good Practice : Dismissal, pr ovides the following : the purpose of probation is clarified as to give an employer an opportunity to evaluate

the employee's performance before confirming the appointment; the period of probation should be determined in advance and should be of reasonable

duration, taking into consideration the nature of the job and the time it takes to determine the employee's suitability for continued employment;

the period of probation may only be extended for a reason that relates to the purpose of

probation (i.e. to evaluate the employee's performance), after allowing the employee to make representations on whether it should be extended;

the employee’s performance should be assessed during probation, and he/she should

be given reasonable evaluation, instruction, training, guidance or counselling during this period.

if the employer determines that an employee's performance is below standard, the

employer may extend the probationary period or dismiss the employee. Before doing so, the employer should :

- advise the employee of where he/she is failing to meet the required

standard; - invite the employee to make representations, which may be made by a

trade union representative or fellow employee on that person’s behalf;

- consider any representations made; If the employer decides to dismiss the employee or extend the probationary period, the

employer should advise the employee of his/her rights to refer the matter to the CCMA / a council having jurisdiction;

Item 8(i)(j) of the Code provides the following:

"Any person making a decision about the fairness of the dismissal of an employee for poor work performance during or on expiry of the probationary period, ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period".

workl@w’s disciplinary skills workshop

Documents