Demonstrate an understanding of the legislation underpinning the management of poor performance, absenteeism, sick leave, incapacity and minor misconduct at the workplace. SUMMARY OF EVIDENCE: The employee was employed as a DTP operator for the Company in April 2002. It’s best practice to write a termination guide. Ms. Margaret O'Malley18361 Cliff StreetSparta, NJ 07871. I Incapacity relating to poor [work] performance is prevalent where an employee has persistently failed to meet certain performance standards. As a consequence, your dismissal is the result of your refusal to meet the core requirements of your job. 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 … The employee should also be given the opportunity to give evidence in mitigation, i.e. Operational requirements are de Because poor performance and misconduct differ, the procedures for dealing with them are also different. South African labour legislation recognises that an employer may require work performance of an acceptable standard. Dismissal for poor work performance (Incapacity) and misconduct are by definition two distinct and diverse concepts. 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. 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. Further to incompatibility there are two other types of incapacity besides ill health and poor work performance. Need a Sample Termination Letter to Fire an Employee? The procedure for dismissals for poor work performance requires that the employee should be counselled, monitored and offered assistance before the contract is terminated. The Covid-19 pandemic is a “ force majeure ”. 8.1.1 whether the employee failed to meet performance standards; 8.1.2 whether the employee was aware, or could reasonable be expected to have been aware, of the required performance standards; Dismissal: Incapacity. He only knows that what is happening is unacceptable to him, and the employee must be dismissed as quickly as possible. 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. 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 … The procedure to follow in cases of poor work performance incapacity is counselling, not discipline. There were 3 charges. The commissioner found that her work amounted to poor performance but not gross negligence. She had short service with the company and on the undisputed evidence prospects of improving that relationship were not good. Article by: Jacques du Toit. The Commissioner found the appeal was unfair. Sanctions short of dismissal. This letter confirms your dismissal from the Ernesto Company for poor performance, effective immediately. 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. 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. An important factor is that the capacity or incapacity of the employee refers to past performance, and not to an " inability to meet an entry-level requirement for a new or a redesigned job." 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. Your performance has been documented in three letters of reprimand which you read and signed. During this final investigation there is a further factor that the employer has to take into account. The Labour Relations Act, 66 of 1995 (LRA) recognises incapacity and misconduct as grounds for dismissal. The Code of Good Practice on Dismissals provides the following guidelines in cases of dismissal for poor work performance: It declared that, at the outset, the matter must be decided on the characterisation of the dismissal as one for incapacity (poor work performance) and not one of misconduct. Poor work performance; 2.1: The probationary employee The easiest termination meetings are held when the prep has been done in advance. This counselling procedure is outlined in section 9, Schedule 8, of the Labour Relations Act. The Labour Relations Act, 66 of 1995 (LRA) recognises incapacity and misconduct as grounds for dismissal. 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. 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. 8. If an employee’s misconduct is serious and if dismissal is possible, the employer needs to hold a disciplinary enquiry. Guidelines in cases of dismissal for poor work performance. ... namely Poor Work Performance and Ill Health or Injury. Dismissal will be with notice as poor performance is not gross misconduct. 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. She resented criticism and dubbed it as interference The commissioner considered that the company had adequate grounds to terminate services for poor performance exacerbated by a breakdown in the employment relationship. 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. By not supplying a reason, your company can use any and all evidence to defend itself. Incapacity on the grounds of ill health or injury may be temporary or permanent. 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. 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. Section 188 of the LRA recognises the fairness of dismissal for incapacity. 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 … Should Employers embark on incapacity enquiries for poor work performance amidst the Covid-19 pandemic? ... namely Poor Work Performance and Ill Health or Injury. 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. In this case the person hearing the appeal was the employee’s supervisor; (b) he was the complainant in the enquiry into her performance and (c) he was the chief witness. The employee was handed a notice of disciplinary hearing for gross negligence in performance. 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