INCAPACITY PROCEDURE FOR POOR PERFORMANCE AND MISCONDUCT

CONTENTS

An example of an organisation's INCAPACITY PROCEDURE FOR POOR PERFORMANCE (This should be drafted according to the specific needs of the organisation)


1. Objectives

2 Procedure for employees in respect of Poor Performance

3. Poor Performance Hearing

4 Dismissal

EXPLANATORY NOTES TO THE INCAPACITY PROCEDURE FOR POOR PERFORMANCE

Application of the Procedure

The Code of Good Practice

Structure of the Incapacity Procedure

How to use the procedure

Service of Notices referred to the procedure

Incapacity Hearing

Appeals

Dismissals

EXPLANATORY NOTES TO THE DISCIPLINARY PROCEDURE FOR MISCONDUCT

The Code of Good Practice

Structure of the Disciplinary Procedure

How to use the Procedure

Service of Notices referred to in the Procedure

Duration of Warnings

Disciplinary Records

Representation at a Disciplinary Enquiry

Disciplinary Enquiry

Appeals

Direct referral to arbitration and appeals

Referral of a dispute

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An example of an organisation's  INCAPACITY PROCEDURE FOR POOR PERFORMANCE

(This should be drafted according to the specific needs of the organisation)


1. Objectives

1.1 This procedure applies to all employees, other than probationary employees who are alleged not to be performing to standard. It distinguishes between employees who can reasonably be expected to bring their performance up to standard (cases of poor performance) and employees who are not able to do so, due to ill health or injury. The procedure only applies to employees who can reasonably be expected to bring their performance up to standard. The procedure does not apply if it is alleged that the employee has breached a rule of the employer regulating conduct, in which case the disciplinary procedure will apply.

1.2 The objectives of this procedure are to:

1.2.1 assist employees to overcome poor performance and to perform to the standard expected of them;

1.2.2 promote efficient and effective performance by employees;

1.2.3 enable the employer to function efficiently and effectively; and

1.2.4 assist the employer to apply corrective action where appropriate.


1.3 It is the responsibility of the employer to decide when it is necessary to apply this procedure.

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2 Procedure for employees in respect of Poor Performance

2.1 If the employer is of the view that an employee, other than an employee on probation, is not performing in accordance with the job that the employee has been employed to do, the employer must:

2.1.1 give written reasons why it is necessary to initiate this procedure;

2.1.2 after serving the written reasons referred to in clause 2.2.1, meet with the employee, and if the employee so chooses with the employee's trade union representative and/or a fellow employee.

2.2 In the meeting the employer must:

2.2.1 explain the requirements, grade, skills and nature of the job;

2.2.2 evaluate the employee's performance in relation to the requirements of the job;

2.2.3 indicate reasons for perceived poor performance;

2.2.4 hear the employee or the employee's representative on:

2.2.4.1 whether the employee has performed in accordance with the requirements of the job; and

2.2.4.2 if the employee agrees she or he has not performed in accordance with the requirements of the job, give reasons.

2.3 After hearing the employee's standpoint, the employer must, if necessary:

2.3.1 develop and initiate a formal programme of counselling and instruction to enable the employee to reach the required standard of performance, which must include:

2.3.1.1 assessing with the employee the time that it would take for an employee to overcome the poor work performance;

2.3.1.2 on the basis of the assessment, establishing realistic time frames within which the employer will expect the employee to have met the required performance standards; and

2.3.1.3 if necessary, identify and provide appropriate training for the employee to reach the required standard of performance, and

2.3.2 establish ways to address any factors that affect the employee's performance that lie beyond the control of the employee.

2.4 If the poor performance of the employee is not remedied within the time frames established by the programme, the employer must:

2.4.1 give the employee a written report on the outcome of the procedure; and

2.4.2 consult again with the employee to explain the outcome of the procedure, and on measures to address any problems indicated in the report.

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2.5 The employer should keep a record of all counselling sessions.

2.6 After consulting with the employee, the employer must consider whether:

2.6.1 to continue to give the employee the appropriate guidance, instruction and counselling and establish a further, appropriate period for the employee to meet the required standard of performance,

2.6.2 to mentor the employee, or

2.6.3 to convene a poor performance hearing to consider what action should be taken, which action may include placing the employee in a more appropriate job or dismissing the employee.


3. Poor Performance Hearing

3.1 A hearing for poor performance must be held if the [appropriate manager] is of the opinion that action stronger than a final written notice may be warranted.

3.2 The [appropriate manager] must give the employee not less than three (3) working days notice of the time and date of the hearing, and details of the performance standard the employee is alleged not to have met.

3.3 The following persons may be present at such a hearing:

3.3.1 A chairperson, [being the (Director/General Manager) or her/his nominee];

3.3.2 A representative of the employer or his/her nominee, who will present the evidence against the employee who has not met the required performance standard;

3.3.3 The employee who is alleged not to have met the required performance standard;

3.3.4 The employee's representative (a fellow employee or a shop steward);

3.3.5 Any witnesses the employer or the employee wishes to call; and

3.3.6 An interpreter, if the employee requires one.

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3.4 At the hearing the chairperson must ensure that:

3.4.1 the employer is allowed to explain the procedure followed in counseling the employee who has failed to meet the required performance standard including explaining:

3.4.1.1 in what respects the employee's performance was unsatisfactory;

3.4.1.2 the steps taken to assist the employee to remedy the situation;

3.4.1.3 the time period granted to the employee to remedy the defects with the employee's performance; and

3.4.2 the employee who is alleged to have failed to meet the required performance standard and the employee's representative are given a full opportunity to present the employee's case.

3.5 At the conclusion of the hearing the chairperson must decide whether the employee is able to meet the required performance standard or not. If the chairperson finds that the employee is not able to meet the required performance standard the chairperson may ask both the employee and the employee's representative and the employer to make submissions on the appropriate outcome of the hearing. The Chairperson must decide on the appropriate action and inform the employee accordingly.

3.6 If an employee is determined to have failed to meet a performance standard that the employee could reasonably be expected to have met, the chairperson must consider whether there is any action that could remedy the situation other than dismissal. If there is not, the employee may be dismissed with notice, in terms of the notice periods prescribed in the employee's conditions of employment.

3.7 The failure of the employee charged or the employee's representative to attend the hearing shall not invalidate the proceedings, except if good cause can be shown for not attending.

4 Dismissal

An employee who is dismissed must be informed that he/she has the right to refer a dispute against the employer in terms of the Labour Relations Act of 1995 as amended, within 30 days of the date on which the employee was dismissed.

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EXPLANATORY NOTES TO THE INCAPACITY PROCEDURE FOR POOR PERFORMANCE

The purpose of these explanatory notes is to supplement the procedure above and offer suggestions on how to apply the incapacity procedure. These notes also highlight innovations introduced in the procedure.

Application of the Procedure

This procedure is intended to apply to all employees who are not meeting a required performance standard.

It does not apply to:

probationary employees who should be treated in accordance with the procedure for probationary employees;

employees who are not performing due to ill health or injury; or

employees who are alleged to have breached a rule of the employer regulating conduct, in which case the disciplinary procedure will apply.

It only applies to employees who can reasonably be expected to bring their performance up to the required performance standard.


The Code of Good Practice

This procedure has been drafted in accordance with the principles set out in the Code of Good Practice, which is contained in Schedule 8 of the Labour Relations Act, no. 66 of 1995. It is recommended that this procedure be read in conjunction with the Code of Good Practice.

An employer is entitled to expect employees to meet acceptable levels of performance. These standards or levels of performance must be relevant to the workplace and reasonable. The performance standards must be made known by the employer to the employee.

At the same time employees are entitled to expect that they will be dealt with fairly and if the employee is not meeting the required performance standard this will be drawn to the employee's attention.

The employer must, depending upon the nature of the employee's job, give the employee feedback, evaluation, training or guidance on how to meet the expected level of performance. The employee should also be given a reasonable period within which to meet the expected performance standard. 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.

A dismissal for poor performance is only justified if the employee was counseled, offered assistance, given a reasonable time within which to improve the performance and despite being made aware of the possible consequences of a failure to improve his/her performance did not so.

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Structure of the Incapacity Procedure

The procedure is intended to provide a framework for parties to use in drafting their own incapacity procedure

The procedure is drafted on the assumption that management will use the procedure as a guide to assist employees who are not meeting a required performance standard, to meet that standard. This means that the employer should endeavor to first inform an employee that his/her performance is not meeting the required performance standard. Thereafter the procedure sets out further steps that an employer should take in assisting an employee to try to meet the required performance standard.

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How to use the procedure 

The procedure sets out the minimum requirements, which any incapacity procedure should contain.

Parties may wish to supplement their own procedure with this procedure or use this procedure to provide a basic structure for developing their own procedure. However, it is a procedure, which if applied as it currently stands, should ensure that employees who are not performing to the expected standard are fairly and effectively managed.

Throughout the procedure square brackets "[ ]"are used to indicate where the parties must insert the appropriate designation of the manager who will be required to manage the type of action described in the procedure. The designation of the appropriate manager will depend on the size and structure of the employer.

Service of Notices referred to the procedure

The written notices to attend a poor performance hearing must be properly served on the employee concerned. It is recommended that the employee who is served with the notice should be asked to sign acceptance of receipt of the notice. However, if the employee refuses to sign when served with the notice, the employer should record this fact on the notice and state the time, date and place where the notice was served on the employee concerned.

Incapacity Hearing

The procedure recommends a formal poor performance hearing, prior to any decision being taken to dismiss an employee for repeated poor performance. However, parties may wish to adapt their procedure to a less formal type of hearing where the chairperson and the representative of the employer are the same person. In all cases the person who chairs the hearing must be a person who is able to make an impartial unbiased decision based on the facts presented.

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Appeals

The procedure does not contain an appeal procedure. It recommends that provided there has been a fair inquiry, which accords the employee who has not been meeting the required performance standard all the elements of a fair hearing, there is no need for an appeal hearing. This view is based on a reading of Schedule 8 of the Labour Relations Act, being the Code of Good Practice.

Dismissals

In the event that the employee does meet the required performance standard, despite the employer following this procedure, the employee may be dismissed. The employee should be informed that if the employee intends to challenge the dismissal the dispute must be referred to the CCMA or to a bargaining council with jurisdiction, within 30 days of the date of dismissal.

 

EXPLANATORY NOTES: THE DISCIPLINARY PROCEDURE FOR MISCONDUCT

The purpose of these explanatory notes is to supplement the disciplinary procedure above and offer suggestions on how to apply the draft disciplinary procedure. These notes also highlight innovations introduced in the procedure.

The Code of Good Practice (see code)

This procedure has been drafted in accordance with the principles set out in the Code of Good Practice, which is contained in Schedule 8 of the Labour Relations Act, no. 66 of 1995. It is recommended that this procedure be read in conjunction with the Code of Good Practice.

Misconduct is one of the grounds in law that justifies an employer terminating the contract of employment of an employee. However, for a dismissal for reasons of misconduct to be fair the dismissal must be:

Substantively fair- there must be a valid reason for the termination of the contract of employment. The facts of each case will determine whether the dismissal is for a fair reason and whether dismissal is the appropriate penalty; and

Procedurally fair - the dismissal must be effected in a procedurally fair manner.

This means that an employer may not just give notice in accordance with the contract of employment or in terms of governing legislation. An employer must also ensure that dismissals for misconduct are for a valid reason after a fair procedure has been followed.

Structure of the Disciplinary Procedure

The procedure is drafted on the assumption that an employer will apply progressive discipline on the understanding that discipline should be corrective rather than punitive. This means that the employer should endeavor to first correct an employee's behaviour, such as by issuing:

verbal warnings for minor transgressions;
written warnings for consistent misconduct; and
final warnings for persistent misconduct.

Dismissal should be considered as a last resort.

The procedure provides that before an employer issues a warning (written warning or final written warning) to an employee, the employer must meet with the employee concerned (see paragraphs 5.2 and 6.2). The purpose of this meeting is for the employer to hear the employee before the employer issues the written warning.

The procedure is intended to provide a framework for parties to use in drafting their own disciplinary procedure.

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How to use the Procedure

The procedure sets out the minimum requirements, which any disciplinary procedure should contain.

Parties may wish to supplement their own procedure with this procedure or use this procedure to provide a basic structure for developing their own procedure. However, it is a procedure, which, if applied as it currently stands, should ensure that discipline is fairly and effectively administered.

The Code of Good Practice requires employers to adopt disciplinary rules that establish the standard of conduct required of employees. The Code recognises that the content of disciplinary rules will vary, depending upon the nature, size and type of undertaking in which the employees are employed.

Throughout the procedure square brackets "[ ]"are used to indicate where the parties must insert details to make the procedure specific to their own situations. For instance, the appropriate designation of the manager who will be required to manage the type of discipline described in the procedure is left open for the parties to complete. The designation of the appropriate manager will depend on the size and structure of the employer.

Service of Notices referred to the Procedure.

All written notices must be properly served on the employee concerned (written warning, final written warning, notice to attend a disciplinary procedure etc.)

It is recommended that the employee who is served with a notice should be asked to sign acceptance of receipt of the notice. However, if the employee refuses to sign when served with a notice, the employer should record this fact on the notice and state the time, date and place where the notice was handed to the employee concerned.

Duration of Warnings

The procedure suggests that:

a verbal warning should remain valid for 3 months (see paragraph 4.3);
a written warning should remain valid for 6 months (see paragraph 5.4); and
a final written warning should remain valid for 12 months (see paragraphs 6.5).

However, the length of time warnings should remain valid are suggestions only (note the square brackets) and this issue should be decided upon by the employer and the employees or unions with whom the employer negotiates the procedure.

Disciplinary Records

The Code of Good Practice recommends that employers keep a record for each employee specifying the nature of any disciplinary transgression/s, the actions taken by the employer and the reason/s for such action/s. For this reason the disciplinary procedure requires the employer to file copies of any written warning, final written warning or any representation made by the employee on the employee's personal file.

Representation at a Disciplinary Enquiry

The disciplinary procedure provides that a fellow employee or a shop steward of a recognised trade union should represent an employee. If a shop steward is called to attend a disciplinary hearing the Code of Good Practice requires an employer to consult with the shop steward's trade union prior to issuing any notice to attend a disciplinary enquiry. This is set out in paragraph 7.4.

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Disciplinary Enquiry

The chair of the disciplinary enquiry must, insofar as it is possible, be a person who is able to make an independent decision based on the facts presented at the enquiry. The chair of the disciplinary enquiry must be a person who has not been involved with investigating the employee concerned or who is going to prosecute the charges against the employee in the disciplinary hearing.

The chair of the disciplinary hearing must consider whether:

the employee being charged broke a rule of conduct in the workplace;
the rule was valid or reasonable;
the employee knew about the rule or should have known about the rule; and
the employer has been consistent in applying the rule.

Once the chairperson of the disciplinary hearing has made a determination about whether or not the employee is guilty of the offence with which the employee is charged the chairperson must consider the appropriate sanction to impose, after having heard the employee in this regard. The chairperson must consider whether dismissal is the appropriate remedy to take against the employee for breaking the rule or whether a less severe penalty, such as a final written warning or suspension would not be more appropriate. Each case must be judged on its own particular facts and the chairperson of the disciplinary hearing should always take into account the nature of the job and the circumstances surrounding the commission of the offence itself.

The Code of Good Practice recommends that when deciding whether or not to impose the penalty of dismissal, the employer should consider:

the gravity of the misconduct;
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.

It is imperative that the employer applies 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 between two or more employees who participate in the misconduct under consideration.

Appeals

The procedure does not contain an appeal procedure. It recommends that provided there has been a fair enquiry, which accords the accused employee all the elements of a fair hearing, there is no need for an appeal hearing. This view is based on a reading of Schedule 8 of the Labour Relations Act, being the Code of Good Practice.

Direct referral to arbitration and appeals

The decision not to include an appeal procedure is also premised on the view that the parties may prefer to include in their disciplinary procedure provision that if the outcome of the disciplinary enquiry is challenged, the dispute is referred to private arbitration for a final and binding award.

However, if the parties decide that they want to include an appeal hearing into their disciplinary procedure, the following is a suggested appeal procedure. The appeal procedure would follow as paragraph 9. However, paragraph 8.2 would need to be deleted.

9. Appeals
9.1 An employee who is dismissed shall be entitled to appeal against such
dismissal to the [appropriate managerial structure].

9.2 Appeals must be noted in writing within five (5) days of the decision,
stating the grounds of appeal.

9.3 The [appropriate managerial structure] shall determine if it is necessary to hear further evidence, or to allow further submissions to be made, and may confirm, vary or uphold any appeal.

9.4 The [appropriate managerial structure] may delegate its powers in 10.3 to a sub-committee or representative.

9.5 In the event that the dismissal is confirmed, the date of dismissal shall be that
date on which the employee is advised of the outcome of the appeal hearing. An employee who is dismissed must be informed that's/he has the right to refer a dispute in terms of the Labour Relations Act of 1995 within 30 days of the date on which the employee was dismissed.

Paragraph 9.5 is drafted in these terms as the procedure for an appeal hearing must take into account the 30 days within which a dismissal dispute must be referred to the CCMA for conciliation. In terms of section 190 of the Labour Relations Act, the "date of dismissal is the earlier of-

(a) the date on which the contract of employment terminated; or
(b) the date on which the employee left the service of the employer."

This appeal procedure states that the dismissal only becomes effective on the date that the employee is advised of the outcome of the appeal hearing. This will allow the exhaustion of internal procedures, including the appeal hearing, before a dispute is declared and referred for resolution.

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Referral of a dispute

An employee who is dismissed may refer a dispute to the CCMA or a bargaining council with jurisdiction within 30 days of the date of the employee's dismissal. An employer should advise the employee of this right upon dismissing the employee (see paragraph 8).It is the practice of the CCMA not to accept any referrals from parties until all internal procedures have been exhausted.

Information provided herein is based on documentation available on the CCMA website

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