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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
_____________________________________________________________________________
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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