In the previous Newsletter we spoke about the dismissal on grounds of the employee’s conduct. Today I want to look at the dismissal of an employee on grounds of “incapacity”. Capacity refers to the employee’s ability to perform his / her work adequately.
At times an employee is employed who just does not perform to the minimum standards set. Before we can consider the dismissal of such a person, we need to go through a specific process:
- The standards to be achieved need to be known to the employee.
- The employee needs to be informed of his / her short comings. This should be in the form of a counselling session. The standards need to be spelled out, how they are going to be achieved, what the employer can do to assist achieving them and a target date needs to be set for the re-evaluation to take place. This must be in writing and signed by both parties.
- Where possible training should be provided. This will obviously depend on the position the employee holds and what qualifications are required for the position. (A graduate accountant should be able to draw up financials, without training from the employer).
- A positional appraisal is also recommended. During this process the overall performance, together with targets set and career path are discussed (including training – internal as well as external training)
If, after two counselling sessions with a reasonable time between them, there is no marked improvement in the attainment of the required standards, the employee may be dismissed.
As mentioned previously, the process must be both procedurally as well as substantively fair. This means a fair and attainable standard had to be set against which the employee is measured, and the procedure followed needs to be fair. Some of the points that need to be followed to make the procedure fair are:
a. The Chairman must be impartial (ideally an outsider)
b. The employee may be represented (supported) by a fellow employee / union member
c. The employee must be given an interpreter if so required.
d. The “charge sheet” needs to be clear and to the point
e. The employee must be able to call witnesses
f. The employee may cross examine all witnesses, including the employer
g. Minutes of the hearing should be kept – we recommend an audio recording should be made.
h. Should the employee be found guilty, the employee must be given a chance to submit mitigating factors. Finally, the employee must be informed of his options to appeal.
Some of the common mistakes committed causing the process to be overturned are:
1. The employee was not properly informed of his / her poor performance.
2. The chairman was not perceived to be totally impartial during the hearing.
3. The employee did not have a representative assisting him / her or had no interpreter.
4. The employee was not given the opportunity to cross examine witnesses, including the employer.
5. The employee was in the position for a long time before management complained about the level of performance. (Why only now??)
Wilbrink and Associates are able to assist Companies in all of the above problems and many more.
For more information we would like to refer you to some other articles written by myself which are on our website www.wilbrink.co.za