The dismissal letter, while never easy or fun to write, is an important component of an employee termination. The facts were not in dispute on the third charge, and the employee said it was the first time she had done an assignment of that kind, she should have checked up the line to her supervisor. It is important that one must differentiate between incapacity poor performance and ill-health or injuries. These dismissals are classified as dismissals for poor work performance. She tendered no convincing factual basis for her claim that her employer was racist, or that there was a conspiracy to get rid of her. POOR PERFORMANCE The Labour Relations Act, recognises three types of dismissal, namely: - Misconduct - Operational requirements (retrenchment) - Incapacity (ill health, injury, poor performance) Schedule 8 of the Labour Relations Act lays down the following Code of Good Practice when dealing with poor performance;- “9. Your performance has been documented in three letters of reprimand which you read and The Commissioner decided that the company ought to have terminated the contract on reasonable notice and that in the circumstances, given the likelihood that the employee would not be able to find alternative employment in the week before Christmas; it should have paid her until the end of January. Incapacity is also sometimes referred to as “incapability”, and a dismissal for incapacity means that an employee may be dismissed if he/she is incapable of doing the work which he / she was employed to do. – Any person determining whether a dismissal for poor work performance is unfair should consider – arise out of poor work performance in a team which functions under the leadership and motivation of the manager concerned. If an employee’s misconduct is serious and if dismissal is possible, the employer needs to hold a disciplinary enquiry. Incapacity on the grounds of ill health or injury may be temporary or permanent. Tips on dealing with poor work performance in the workplace. It would have been fairer to apply similar standards of conduct to one class of employee as to the other unless there are sound operational reasons why this ought not to be. The employer should consider alternatives to dismissal for Poor Work Performance. You will need to keep the company informed of your contact information so that we are able to provide the information you may need in the future such as your W-2 form. (1998) 7 ARB 6.9.5, NEHAWU v University of Cape Town and Fry’s Metals (Pty) Ltd v NUMSA, The University Of The North v Franks & others, CCMA’S OPERATIONS DURING THE COVID-19 PANDEMIC. Fairness of dismissal for incapacity | Labour Guide. Guidelines in cases of dismissal for poor work performance. Incapacity is also sometimes referred to as “incapability”, and a dismissal for incapacity means that an employee may be dismissed if he/she is incapable of doing the work which he / she was employed to do. Download the template (compatible with Google Docs and Word Online), or read the text version below. But sometimes, the constant poor performance of an employee hampers this progress. The LRA clearly differentiates between the reason for dismissal for poor performance and ill-health or injuries. The procedure to follow in cases of poor work performance incapacity is counselling, not discipline. The period should be determined by the nature of the job… We dealt previously with the fairness of dismissal for misconduct, and for Incapacity – Poor Work Performance. In situations where the employee is not at fault you will be required to help the employee stay in employment if this is at all reasonably possible. Dismissal for incapacity on the basis of poor work performance. INCAPACITY Introduction. Poor work performance; 2.1: The probationary employee You still managed to meet your target for the third year in a row which you had agreed upon with your manager. Case Law & Legislation Review: Substantive Fairness in Dismissal - Incapacity & Poor Performance, By Gary Watkins who can be contacted at www.caselaw.co.za or www.workinfo.com. It documents the information you need for the employee's file and answers the employee's most obvious questions. The existence or otherwise of capability and fault / blameworthiness for the lack of performance on the part of the employee determines whether one is dealing with misconduct or incapacity. You turned in your company badge and smartphone at the time of your dismissal, so we have accounted for all company-owned items. The Labour Relations Act, 66 of 1995 (LRA) recognises incapacity and misconduct as grounds for dismissal. Please seek legal assistance, or assistance from State, Federal, or International governmental resources, to make certain your legal interpretation and decisions are correct for your location. CONTENT Demonstrate an understanding of the legislation underpinning the management of poor performance, absenteeism, sick leave, incapacity and minor misconduct at the workplace. Article by: Jacques du Toit. 8.1 Any person who is determining whether poor work performance justifies dismissal must consider. You are dismissed because, despite repeated feedback and performance coaching from your manager, your work performance has not improved. you have also been a part of the performance coaching by your manager. The commissioner said that she did not consider that the employee had made out a case that the chairperson did not consider the material properly and that he did not exercise an independent judgment although the commissioner agreed that his reasons were somewhat skimpy, however this did not make the hearing unfair. Here the customer had already signed off on the project so there did not appear to be a reckless neglect amounting to gross negligence. If you state the cause, you may be limited in court to only using that reason for the termination. Guidelines in cases of dismissal for poor work performance Any person determining whether a dismissal for poor work performance is unfair should consider- ... Incapacity: Ill health and injury. She left and he continued in her absence. By Gary Watkins who can be contacted at www.caselaw.co.za or www.workinfo.com. She contested the validity of this warning as she had understood that the parties had agreed to ‘let bygones be bygones". Want to Know the Best Practices for Employee Personnel Files? Poor performance or dysfunction is a form of incapacity of the employee. Your performance has been assessed many times and you have been informed about it multiple times. Demonstrate an understanding of the legislation underpinning the management of poor performance, absenteeism, sick leave, incapacity and minor misconduct at the workplace. You are dismissed because, despite repeated feedback and performance coaching from your manager, your work performance has not improved. You are dismissed owing to your constant poor performance. The procedure for dismissals for poor work performance requires that the employee should be counselled, monitored and offered assistance before the contract is terminated. Termination Letter for Poor Performance: The success of an organization depends on the commitment and performance of its employees.Hard work and dedication takes the organization to success. Because poor performance and misconduct differ, the procedures for dealing with them are also different. Employers often lose poor performance cases at the CCMA because they are unable to prove that the employee failed to perform or because the dismissal process was unfair. The result of this is that they end up dismissing … 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. ISSUES: substantive fairness in dismissal - incapacity and poor performance – negligence in performance is only gross if it borders on reckless - summary dismissal only justified where "gravely serious misconduct" – if appeal is offered as a process it must be conducted fairly. Dismissal for poor work performance (Incapacity) and misconduct are by definition two distinct and diverse concepts. As in the case of dismissals for misconduct, dismissals for poor work performance must be for a fair reason and effected in accordance with a fair procedure – ie such dismissals must be procedurally and substantively fair. The dismissal letter documents the meeting for the employee and becomes part of the employee's personnel file. However, although the employer had had sufficient valid cause to terminate the contract the commissioner said that he did not consider summary dismissal justified. t He reviewed the 3 jobs on which there were errors and considered that there were adequate grounds to find that the employee was negligent and therefore to terminate services and he recommended summary dismissal. Patience is also essential as performance-related dismissals, if carried out fairly, always take time (which many senior managers do not seem to have). Progressive Discipline in the Workplace and How It Works, How to Fire an Employee for Attendance Problems, Sample Weapons Policy to Put in an Employee Handbook, How to Confirm a Person's Employment Status, Gearing Up for Layoffs? However, the primary objective of formal performance assessment is to allow for correction before instituting the investigation. Ø Dismissal for unsatisfactory performance or incapacity to perform is the step of last resort in the management of employee performance. It appears from the undisputed record of the enquiry and the chairperson’s oral evidence that he did explain to her that if she were prejudiced he would postpone the matter. She had short service with the company and on the undisputed evidence prospects of improving that relationship were not good. Print the letter on company stationery and have it signed by the employee's manager or the company owner. Incapacity because of ill-health differs from poor work performance because there can be no fault attributed to the employee for incapacity due to ill-health or injury. Dismissal for Alleged Incapacity: POOR WORK PERFORMANCE This checklist has been prepared having regard to the CCMA Arbitration Guidelines, the Code of Good Practice: Dismissal and relevant case law v34 Go to www.purshotam.co.za for an updated version of this document plus many more aids NB: The law does NOT require that each and every He only knows that what is happening is unacceptable to him, and the employee must be dismissed as quickly as possible. I Incapacity relating to poor [work] performance is prevalent where an employee has persistently failed to meet certain performance standards. Dismissal for incapacity on the basis of poor work performance. That meant a different set of requirements applied. Operational requirements are de Schedule 8 to the LRA also provides guidelines in relation to the different procedures that have to be followed in the case of incapacity due to poor performance and misconduct respectively. Further to incompatibility there are two other types of incapacity besides ill health and poor work performance. This letter confirms your dismissal from the Ernesto Company for poor performance, effective immediately. a) The first of these is that the employer is given a good deal more latitude by the Code in assessing whether the employee has failed to meet the required performance standard during probation (the substantive element of a dismissal for poor work performance), than thereafter, when the arbitrator must decide whether dismissal was an appropriate sanction. Fairness of dismissal for Operational Requirements | Labour Guide We dealt previously with the fairness of dismissal for misconduct, and for Incapacity – Poor Work Performance, as well as dismissal based on incapacity due to ill health.. We are now taking a look at the … (c) Workplace Performance Technologies (Pty) Ltd t/a Workinfo.com. She received a written warning for poor performance in July which was valid for 12 months. Dismissal for Alleged Incapacity: POOR WORK PERFORMANCE This checklist has been prepared having regard to the CCMA Arbitration Guidelines, the Code of Good Practice: Dismissal and relevant case law v34 Go to www.purshotam.co.za for an updated version of this document plus many more aids NB: The law does NOT require that each and every Sanctions short of dismissal. Dismissals for Incapacity: Poor Work Perfomance. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. Incapacity because of ill-health differs from poor work performance because there can be no fault attributed to the employee for incapacity due to ill-health or injury. The employee claimed that she had not been given enough particulars for preparation, but the chairperson refused postponement and she left the proceedings. 8. In the second place, the issue of procedural and substantive fairness for incapacity in relation to both poor work performance and ill-health will be covered. We dealt previously with the fairness of dismissal for misconduct, and for Incapacity – Poor Work Performance, as well as dismissal based on incapacity due to ill health.. We are now taking a look at the fairness of dismissal based on operational requirements. During the probationary period, her key performance areas were reduced. If the case for dismissal for cause is solid and documented well, use this letter as a sample. The previous Labour Appeal Court held that the substantive fairness of a dismissal based During the probationary period, her key performance areas were reduced. At the hearing the employee requested postponement because she had not had enough time to prepare. She has covered HR for The Balance Careers since 2000. Send a dismissal letter to the employee after the termination meeting with return receipt requested, or hand the dismissal letter to the employee at the end of the meeting. The chairperson’s uncontested evidence suggests that the employee was unhelpful and argumentative at the hearing. He could not possibly have been independent or neutral on hearing the appeal. In Ubuntu Education Fund v Paulsen NO and Others [2019] 11 BLLR 1252 (LAC), the employee was employed as a supply chain coordinator and was subject to a six month probationary period. factors that affected his performance. Poor work performance (incapacity) vs. misconduct We are often confronted with enquiries from clients that demonstrate that many managers are still not familiar with the difference between misconduct and incapacity. If therefore your employer would otherwise have a good reason to dismiss you on capability […] requirements for a fair dismissal for misconduct will be considered. Article by: Jacques du Toit. The employee had not realised how strict the standards would be and there is at least the suspicion that if she had not been so aggressive and resentful of authority the company might well not have held a formal enquiry back in July. The 5 steps PRIOR TO dismissal for incapacity: Ill health / injury NB: Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. ISSUES: substantive fairness in dismissal - incapacity and poor performance – negligence in performance is only gross if it borders on reckless - summary dismissal only justified where "gravely serious misconduct" – if appeal is offered as a process it must be conducted fairly. We can mail your final paycheck to your home, or you can make arrangements with your manager to pick it up. It was common cause that there were some performance problems but instead of conceding these and making efforts to improve and align her work performance to the company’s expectations the employee was suspicious and accused the employer of bad faith. The Labour Relations Act, 66 of 1995 (LRA) recognises incapacity and misconduct as grounds for dismissal. The commissioner found that her work amounted to poor performance but not gross negligence. This letter confirms your dismissal from the Ernesto Company for poor performance, effective immediately. Disclaimer: Please note that the information provided, while authoritative, is not guaranteed for accuracy and legality. CEO Dispute Resolution Official – Bethlehem You were offered resources and additional support that you refused. It also be described as incompetence, lack of skill knowledge, Incompatibility, bad attitude, Carelessness, in accuracy, incomplete work, poor social schools, and failure to comply with reasonable standards. The Code of Good Practice on Dismissals provides the following guidelines in cases of dismissal for poor work performance: This counselling procedure is outlined in section 9, Schedule 8, of the Labour Relations Act. The chairperson considered that the more than 8 days she had had was adequate. Here's a Sample Layoff Termination Letter, The Role of the Supervisor in Managing Employee Absenteeism, Essential Elements of an Employee Personnel File, Sample Resignation Letter for Quitting Your Job. Ms. Margaret O'Malley18361 Cliff StreetSparta, NJ 07871. Susan Heathfield is an HR and management consultant with an MS degree. Case Law & Legislation Review: Substantive Fairness in Dismissal - Incapacity & Poor Performance. The letter will include information about your eligibility for the Consolidated Omnibus Budget Reconciliation Act (COBRA) continuation of group health coverage. Should Employers embark on incapacity enquiries for poor work performance amidst the Covid-19 pandemic? In this case the manager may have many plausible reasons why the team targets were not attained, but 2. You are dismissed because, despite repeated feedback and performance coaching from your manager, your work performance has not improved. Finally, the dismissal letter provides formal documentation in the event of a lawsuit or when the HR function ceases to exist in its current format. The commissioner found, after listening to the evidence on the actual jobs on which the company complained, that the company had discharged the onus of proving on a balance of probabilities that the employee’s work performance was below expected standards, however she found that negligence is only gross if it borders on the reckless. South African labour legislation recognises that an employer may require work performance of an acceptable standard. Incapacity: Poor work performance (1) A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. CONTENT. The employee was handed a notice of disciplinary hearing for gross negligence in performance. The site is read by a world-wide audience and ​employment laws and regulations vary from state to state and country to country. The employer should consider alternatives to dismissal for Poor Work Performance. We dealt previously with the fairness of dismissal for misconduct, and for Incapacity – Poor Work Performance, as well as dismissal based on incapacity due to ill health.. We are now taking a look at the fairness of dismissal based on operational requirements. When it comes to poor performance, the employer must follow a poor performance management procedure. Ill health or Injury: This is to be distinguished from disability, where an employee may be able to perform his/her duties with some adjustments to … Section 188 of the LRA recognises the fairness of dismissal for incapacity. The employee should also be given the opportunity to give evidence in mitigation, i.e. Incapacity in labour law is the non-blameworthy breach of a workplace/performance standard, i.e. ... namely Poor Work Performance and Ill Health or Injury. Obviously, this won't apply in cases of ​no-show, no-call job abandonment. If you need to terminate an employee for poor performance, you'll need to create a simple termination letter that protects you as an employer. Their agreement to "start over" was a metaphor for an agreement to be more positive and not a negation of the history that was already "on the record". The employee considered that she had been victimized and that she was subjected to racist treatment. Managers and HR staff often move on and the excellent documentation and the dismissal letter serve as your formal record and historical perspective. Once it has been established that an employee has failed to meet a required performance standard in the workplace, the employer has taken the necessary remedial action to mitigate as far as possible the causes of the incapacity, and after a reasonable time period the employee has not shown sufficient progress, certain procedural steps need to be followed before an employer can fairly dismiss … 8. Please enable the javascript to submit this form. FORMAL PERFORMANCE ASSESSMENT Progressively firmer steps by means of recorded counselling sessions, outlining the consequences of continued lack of improvement, such as a formal poor work performance investigation. All Rights Reserved. At common law an employer may terminate on reasonable notice unless the employee has committed a major breach of contract. If the employee's manager has kept performance documentation, have your human resources staff check the documentation to make sure it is dated and will pass legal muster. Under most circumstances, the only recommended way to dismiss an employee is for the employee's manager and a representative from the human resources department to tell the employee about the dismissal during an in-person meeting. Poor work performance (incapacity) vs. misconduct. Dismissal will be with notice as poor performance is not gross misconduct. It was common cause that after the July hearing, management went easy on her. How to terminate an employee for poor performance You’ll want to be prepared with as much documentation and paperwork as possible. Attention will be accorded to specific acts or alleged acts of misconduct involving senior employees. Evidence of the employee’s poor performance (such as examples of inadequate work, or complaints by customers or colleagues) should be retained and shared with the employee at each stage of the process. In situations where the employee is not at fault you will be required to help the employee stay in employment if this is at all reasonably possible. Your performance has been documented in three letters of reprimand which you read and signed. Section 188 of the LRA recognises the fairness of dismissal for incapacity. The appeal was not successful. Additionally, the performance improvement plan (PIP) you were participating in put forth specific goals and targets that you agreed to meet by their due date. Here Are Rejection Letter Samples to Send to Unsuccessful Applicants, answers the employee's most obvious questions. During this final investigation there is a further factor that the employer has to take into account. 8.1 Any person who is determining whether poor work performance justifies dismissal must consider. The chairperson of the December enquiry was entitled, on the basis of the evidence before him, to take the July warning into consideration. Proper documentation so that in the event of non-compliance the ensuing dismissal can be proved to be procedurally and substantively fair. You can use this termination letter sample as a model. Please note that laws regarding the final paycheck may vary from state to state and country to country. 1. In a business where there are family members management needs to be scrupulous in avoiding actual nepotism or giving the impression that family and "friends" are being treated more favorably than others. This information is for guidance, ideas, and assistance. If, despite counseling and training, the employee is still not able to meet the required performance standard, within a reasonable time period set, the employer may dismiss the employee for poor performance. CEO Dispute Resolution Official – Bethlehem Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline” [Code; para.3 (3)]. (Own emphasis) In a Nutshell: If the Employee do not correct his/her behaviour there is a real possibility that the Employer can subject him/her to an incapacity- poor work performance hearing that can lead to dismissal . An essential ingredient required to make such a dismissal fair, however, is to follow a proper dismissal process. If an employer allows an appeal, a neutral person must consider it. Operational requirements are de What not to say when you’re terminating an employee for poor performance Don’t apologize. For example, in the case of Nationwide Airlines (Pty) Ltd vs Mudau and others (2003, 3 BLLR 279) the employer dismissed Mudau after he failed a flight simulator test. Generally, an employer cannot justifiably conclude that dismissal is necessary if the employee could conceivably have met the required standard within a reasonable period. ... namely Poor Work Performance and Ill Health or Injury. the Commissioner failed to properly conceptualise the reason for Robinson’s dismissal and thus confused issues applicable to dismissals for incapacity in the form of poor work performance (which was the reason for Robinson’s dismissal) with issues … There seems to be a lack of understanding of the clear distinctions that separate the various conditions – in other words, the employer does not know what the charge should be. Your lack of performance at work, or “capability” as it it known under employment legislation, is something that can trigger a dismissal. Sample Dismissal Letter for an Employee's Poor Performance, Check Your Documentation Before Employee Dismissal, Before You Send an Employment Dismissal Letter, Sample Employee Letter of Dismissal (Text Version), Conclusions and Final Thoughts About a Dismissal Letter, Use These Samples to Write a Formal Employee Reprimand Letter, Sample Employment Termination Letters to Fire an Employee for Cause, Learn How to Write a Termination Letter With These Samples, You'll Want to Confirm Employment Termination With a Letter. Your performance has been documented in three letters of reprimand which you read and signed. It’s best practice to write a termination guide. This letter confirms your dismissal from the Ernesto Company for poor performance, effective immediately. 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Despite this allowance, the principle that dismissals must be based on fair reasons still stands. - Incapacity (ill health, injury, poor performance) Schedule 8 of the Labour Relations Act lays down the following Code of Good Practice when dealing with poor performance;- “9. SUMMARY OF JUDGMENT: Although the employee was justifiably concerned that she was unable to prepare herself properly because the nature of the evidence was technical and specific, she was not entitled to demand all the evidence before the hearing and then to walk out when she did not get it. Has covered HR for the contravention of the employee was handed a notice of disciplinary hearing for gross in. Be based on ill health dysfunction is a further factor that the employee Samples to to. Who is determining whether poor work performance performance assessment is to allow for before! Not possibly have been informed about it multiple times due to his/her fault for... 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