Dismissal for Poor Performance and Medical Incapacity PDF

DISMISSAL: POOR PERFORMANCE MEDICAL INCAPACITY  WHAT IS INCAPACITY? Incapacity refers to an employee’s inability to perform his or her contractual duties, for a reason not attributed to the fault or negligence of the employee concerned. Grogan argues, that 'employees cannot be d...

DISMISSAL: POOR PERFORMANCE MEDICAL INCAPACITY  WHAT IS INCAPACITY? Incapacity refers to an employee’s inability to perform his or her contractual duties, for a reason not attributed to the fault or negligence of the employee concerned. Grogan argues, that 'employees cannot be disciplined for acts or omissions for which they are not to blame' but 'an inability to perform remains a ground for termination of a contract'.  CONTINUED… INCAPACITY POOR PERFORMANCE MEDICAL INCAPACITY - lack of skills - illness - lack of knowledge - injury - inefficiency DISMISSAL FOR POOR PERFORMANCE Poor performance: incident where an employee does not do his job according to the required standards. Dismissals for poor performance are called no fault dismissals. Employer can only dismiss an employee if he acts according to: - A fair reason (substantive fairness) - A fair procedure (procedural fairness) CODE OF GOOD PRACTICE: DISMISSAL SUBSTANTIVE FAIRNESS The Code provides that persons determining whether a dismissal for poor work performance is unfair should consider: (a) whether or not the employee failed to meet a performance standard; and (b) if the employee did not meet such standard, whether or not: (i) the employee was aware, or could reasonably be expected to have been aware, of the required standard; (ii) the employee was given a fair opportunity to meet the required standard; and (iii) dismissal was an appropriate sanction for not meeting the required standard [Sch 8 item 9].  DID THE EMPLOYEE FAIL TO MEET A PERFORMANCE STANDARD? The Code requires an employer to conduct an investigation when allegations of poor work performance arise in order to determine the reasons for this. This is done to determine whether any weaknesses exist in the support system and whether any steps can be taken by the employer to rectify the situation.  It must be proven that the standard exists and that it is reasonable. In establishing whether a standard exists – contract of employment, policies and practices can be looked at. In determining reasonableness – one needs to look at workplace practices, the performances of other employees, by express or implied warranties etc… Somyo v Ross Poultry Breeders (1997) 7 BLLR 862 (LAC)  AWARENESS OF THE PERFORMANCE STANDARD Employees should be reasonably have been aware of the required performance standard. PS can be conveyed by means of general directives or by ad hoc measures, eg warning and counselling if an employee is underperforming. The more the warnings and guidance the employee has received the more likely he is aware of his performance.  REASONABLE OPPORTUNITY TO IMPROVE An employee should be made aware of his shortcomings; how these could be rectified, and must be given an opportunity to improve. How much of time should an employee be given to improve? Look at: Complexity of the job; Volume and nature of the job; Nature of the employer’s business; Qualifications and experience of the employee.  Boss Logistics v Phopi (2010) 31 ILJ 144 (LC)  APPROPRIATE SANCTION Dismissal must be an action of the last resort. Employee must be given the opportunity to be heard before a decision to dismiss is made. Employer must prove that an employee is unable to perform duties he was hired to do.  PROCEDURAL FAIRNESS Designed to inform poor performer about their shortcomings, and give them an opportunity to improve. The purpose is to make a dismissal decision a fair one. Process of assessments, advice, counselling, guidance, and warnings are part of the fairness of dismissal. The procedural requirement for poor performance dismissal are found in the Code of Good Practice:  PROCEDURAL FAIRNESS CONT…. Item 8 of the Code provides that employees cannot be dismissed for poor performance unless the employer has: - Given the employee appropriate evaluation, instructions, training, guidance and counselling; and - If an employee continues to under perform after a reasonable period of time then:  Item 8(3) – cause of poor performance should be investigated.  Item 8(4) – employee should be given a chance to be heard.  PROCEDURAL FAIRNESS CONT…. Fair procedure requires that an employee must: - Conduct fair appraisal. - Issue initial warning (usually a verbal warning). - Counsel and assist an employee. - Warn an employee about what will happen if poor performance continues. - Grant employee with reasonable opportunity to improve. - Give an employee an opportunity to be heard.  PROBATIONARY EMPLOYEES Can be dismissed for reasons less compelling than those required in the case of tenured employees. Purpose of a probationary period is to allow the employer the opportunity to evaluate the performance of the employee. Employers are required to give probationary employees reasonable evaluation, instructions, training, guidance or counselling in order to allow the employee to render a satisfactory service.  Probationers like other employees are entitled to evaluation, training, instruction, guidance or counselling [item 8(1) (e)] in respect of the work. They are allowed to make representation prior to dismissal and they are entitled to representation by a trade union representative or a fellow employee [item 8(1) (h)]. The period of the probation should be determined in advance and should be reasonable in duration taking into account the nature of the job, length of time needed by the employer to determine the suitability of the employee.  Probations should not be used for purposes not provided in the Code i.e. to deprive employees of the status of permanent employment. The employer should either extend the probationary period or dismiss the employee. This can only be done (dismissal) after the employee has been given the opportunity to make representation to the employer.  WHAT IS MEDICAL INCAPACITY? Medical incapacity is a generic term for what is referred to in the LRA as a dismissal on the grounds of ill health. It is also regarded as an employee’s inability or failure to carry out a job according to the expected standards (IHRG, 2011), or perform the tasks which make up their job due to medical constraints resulting from an injury, illness, disease, accident etc.  CODE OF GOOD PRACTICE: DISMISSAL Schedule 8, Item 10 of the Code stipulates several principles: The employer needs to ascertain whether the employee is capable of performing the task for which he or she is employed; If the employee is unable to perform their job, the extent of the incapacity and the likely duration of the incapacity must be established. The employer is required to investigate whether the employee’s duties can be adapted to accommodate the disability. Their must be a consideration of alternative work even at a reduced remuneration.  SUBSTANTIVE FAIRNESS Schedule 8, item 11 of the Code provides that any person determining whether a dismissal arising from ill health or injury was unfair must consider - (a) whether or not the employee is able to perform the work; and (b) if the employee is not capable - (i) the extent to which the employee is able to perform the work; (ii) the extent to which the employee’s work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee’s duties might be adapted; and (iii) the availability of suitable alternative work [Sch 8 item 11]. Thus the employer is require to investigate an employee’s work circumstances or duties to determine whether the duties can be adapted to accommodate any incapacity [Item 11 (b) (1) to (iii)].  PROCEDURAL FAIRNESS Identify the seriousness of the incapacity Identify possible alternatives Fair Dismissal  SERIOUSNESS The employer is required to find out how serious the employees incapacity is. Dismissal for illness or injury which is brief may be unwarranted. Employers therefore need to determine whether the incapacity is temporary or permanent.  ALTERNATIVES OR ADAPTION The employer should consider options to adapting the duties of the employees such as: reasonable assistance and equipment to cope with the work; finding alternative work. How long will the employee be unable to work? Can a temporary worker be used to accommodate for the employees absence?  PERMANENT INCAPACITY How much of the work can the employee still perform? Can the work or environment be adapted to allow the employee to function effectively? Can the employee be offered an alternative job?