HANDING POOR WORK PERFORMANCE
By Faudzil Harun
Provide Clue to Performance
The Industrial Court is a court of equity and it is not going to be sympathetic to employer who has non-performing employee but the employer does not provide clue or inform the employee that his performance is unsatisfactory or not performing at the required standard. Here is some ways to provide clue to performance :
1. Inform the employee of the standard and what is expected of him.
2. Inform the employee how his performance will be assessed.
3. Provide appropriate training to the employee.
4. Provide appropriate tools for the employee to perform his duties.
5. Provide adequate coaching, counseling and supervision.
6. Informed the employee of his poor performance by pointing out the
employer’s ground for complaint and instructing the employee how to
improve promptly.
The Industrial Court is a court of equity and it is not going to be sympathetic to employer who has non-performing employee but the employer does not provide clue or inform the employee that his performance is unsatisfactory or not performing at the required standard. Here is some ways to provide clue to performance :
1. Inform the employee of the standard and what is expected of him.
2. Inform the employee how his performance will be assessed.
3. Provide appropriate training to the employee.
4. Provide appropriate tools for the employee to perform his duties.
5. Provide adequate coaching, counseling and supervision.
6. Informed the employee of his poor performance by pointing out the
employer’s ground for complaint and instructing the employee how to
improve promptly.
Cautioning
The
employer must give a clear warning that the employee’s performance is
unsatisfactory. The employer must also warn the employee if the employee do not
correct and improve his performance, than the employer shall have no other
choice but to take serious actions including dismissal.
Salary increment and bonus
If an employee who is not performing received salary increment and bonus equally to others, he can use these to get the sympathy of the court.
Commendation and praise
Any kind of commendation and praise can be used by the employee to prove his performance was not wanting. If the employee is not informed of his poor performance, these commendation and praise would cause problems to the employer.
Salary increment and bonus
If an employee who is not performing received salary increment and bonus equally to others, he can use these to get the sympathy of the court.
Commendation and praise
Any kind of commendation and praise can be used by the employee to prove his performance was not wanting. If the employee is not informed of his poor performance, these commendation and praise would cause problems to the employer.
1. Informing employee of his poor performance
● The employer must inform the employee as to the nature of the poor
performance and the acceptable standards that is required.
● The employer must find out why the employee is not performing –
counseling.
2. Provide the employee the opportunities to improve his performance
● After the employer identifies the causes of the poor performance, the
employer must provide assistance to overcome these problems.
● The employer must provide appropriate training, sufficient tools and
guidance to the employee.
● Employer must conduct close monitoring of the performance of the
employee. The employee must be informed of the monitoring exercise.
3. Giving warning to the employee of his non improvement
● If the employee on his own fault fails to make improvement of his
performance, the employer must instantly warn the employee.
● The employer must give the employee the reasonable period of time for the
employee to make improvement, failing that serious action will be taken by
the employer including dismissal.
4. Proof of failure of the employee to improve his performance
The employer will have to established that he has indeed provided the
employee with the appropriate assistance and reasonable period of time for
the employee to make improve his performance and the employee has not
make any improvement on his performance despite the opportunities
provided by the employer.
Important !!
There must be sufficient communication to the employee to established poor performance or inefficiency before the employer can rely on it to later justify dismissal.
Related Indusrial Court Award (for reference) :
In TWU v Toong Foong – I/C Award 103/77 the
court stated :
‘Dismissed workers should ask “have I given unsatisfactory service or have I caused a problem to my employer that merits my dismissal or termination? If he can sincerely and honestly answer “no” to these questions, then the court will always sympathize with him and will extend its fullest sympathy to him, but if he for one moment hesitates to answer ‘no’ to either question then I would advise him to stay away from this court and not waste his time and everybody’s time.’ Conversely an employer who is not able to prove poor performance on the part of the employee cannot expect the sympathy of the court.
In the case of White vs Medpro Pharmaceuticals (Pty) Ltd (2000, 10 BALR 1182) White, the employee was dismissed for consistently failing to meet her sales targets. The employer justified its dismissal decision by stating that achieving sales targets was a crucial requirement of the employee. Medpro also alleged that, had the employee made the targeted number of client calls, the sales targets would have been achieved. However, the employer brought no proof of its allegations and did not prove that its decision to dismiss was fair. The arbitrator held that the employer had the onus of proving that the performance standards set were applied in affair manner. As the employer failed to do so the arbitrator found the dismissal to be both procedurally and substantively unfair.
‘Dismissed workers should ask “have I given unsatisfactory service or have I caused a problem to my employer that merits my dismissal or termination? If he can sincerely and honestly answer “no” to these questions, then the court will always sympathize with him and will extend its fullest sympathy to him, but if he for one moment hesitates to answer ‘no’ to either question then I would advise him to stay away from this court and not waste his time and everybody’s time.’ Conversely an employer who is not able to prove poor performance on the part of the employee cannot expect the sympathy of the court.
In the case of White vs Medpro Pharmaceuticals (Pty) Ltd (2000, 10 BALR 1182) White, the employee was dismissed for consistently failing to meet her sales targets. The employer justified its dismissal decision by stating that achieving sales targets was a crucial requirement of the employee. Medpro also alleged that, had the employee made the targeted number of client calls, the sales targets would have been achieved. However, the employer brought no proof of its allegations and did not prove that its decision to dismiss was fair. The arbitrator held that the employer had the onus of proving that the performance standards set were applied in affair manner. As the employer failed to do so the arbitrator found the dismissal to be both procedurally and substantively unfair.
In Duff vs McGregor (Pty) Ltd (2004, 1 BALR 21) the arbitrator again blamed the employer for the employee’s poor sales performance because the employer could not prove that the targets set were appropriate and attainable. Again the dismissal for poor performance was found to be both substantively and procedurally unfair.
In Smith and Wood Industrial Law (page 302) states :
“In the realm of dismissal for incapability, it is important the employee whose work is causing dissatisfaction should be treated fairly. The question for the tribunal is whether the employer has satisfied them that he genuinely believed on reasonable grounds that the employee was incapable. The requirement of reasonable grounds means that the employer should make a proper and full investigation into the facts of the case;…… whether the employee was given proper training for the job, adequate supervision and, where appropriate, proper support from the employer. Also it is well established that this area is amenable to the application of a warning procedure, though the emphasis may be different from that in misconduct cases for here the constructive side of a warning may be more important, not only pointing out the employer’s ground for complaint but also instructing the employee how to improve and giving him reasonable time in which to do so. The importance of a fair procedure in this area should not be underestimated, and lack of it leads to inadequate investigation by the employer that can make the dismissal of an incompetent employee unfair. The rationale underlying the requirements of a due inquiry in the case dismissal for misconduct ought to apply equally to the procedure to be taken by employers in the dismissal of an employee for incapability.”