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Don’t fight it, use it to your advantage!

Bruniquel Bulletin #3-2014

One of the major complaints of South African employers is that it is too difficult to dismiss employees due to cumbersome legislative processes.

Employer Concerns
Employers often raise the following concerns:-

  • The CCMA does not screen cases, so even dismissals which are fair and have no prospect of being overturned are accepted and put on the roll by the CCMA. The employer has to then spend time and other resources to justify the dismissal.
  • In many cases, employers do not have the training or experience to understand that they can separate conciliation from the arbitration process. They then end up wasting time at the CCMA, only to have the matter set down for arbitration on a later date. Witnesses waiting for a Con-Arb will also waste time only to be called back later.
  • Sometimes employers incur transport and accommodation expenses in the process.
  • In small to medium companies, often the most senior person is involved and this can impact hugely on the business.
  • Employers also complain that the Code of Good Practice requires them to spend excessive time in trying to deal with poor performers who are ‘beyond assistance’.

Like it or not, this is the system in South Africa as it stands, so employers need to get smart and learn to work within it.

Selection
Paying attention to who you employ is the starting point. Poor selection can result in an employer being stuck with a person who cannot perform the job they were employed to do, has a poor work ethic or who just does not ‘fit in’. It is important therefore to ensure that the selection and recruitment process is designed in a way that will ensure the best possible candidates are appointed.

Probation
The Labour Relations Act, Schedule 8, provides for and gives guidelines on probation in employment. From an employee’s point of view, having started a new job, the employee wants to see if he or she is happy with the job and whether he or she fits in with the people.

From the employer’s point of view, probation serves two purposes. Firstly, to ensure that the new employee’s behaviour and work ethic is in line with the employer’s rules and standards. No employer would like to have to employ someone who is constantly absent from work, has no respect for authority or is plain lazy.

Secondly, to ensure that the employee is capable of meeting the requirements of the job – it is a known fact that some people inflate or even lie about their skills and experience on their CV’s.

Probation, as provided in the LRA is therefore designed to ensure that both parties can get out of the contract if necessary, as easily and as inexpensively as possible.

Induction
However, employing people is expensive and dismissing them even more so. Therefore, employers need to invest in proper selection procedures and in training management to use them effectively. They also need to implement proper induction processes aimed at enabling new employees to settle in and become part of a team as soon as possible.

Induction also requires that new employees are coached, trained and evaluated so that if a new employee does not meet requirements, this becomes apparent sooner rather than later. It is important to have proper control documents to ensure that the induction process is followed and that the employee’s performance is properly evaluated and corrective action is taken.

Usually induction should be completed within the period of probation. If an employee shows signs of not ‘cutting it’ during induction, then his or her performance and conduct needs to be very closely monitored during the rest of the probation period.

Record Keeping
It must be understood that whilst a probation clause allows an employer to correct poor selections it is not a free ticket to arbitrarily dismiss employees. The LRA requires that if an employer decides to dismiss for poor performance or unsuitability during or at the end of a probation period, the employer has to prove:-

  • That the employee was made aware of the rules and work standards. This is important as one cannot measure something that does not exist.
  • Exactly or precisely what the employee’s shortcomings were. The employer must keep a record of the employee’s shortcomings. This may include poor performance, minor misconduct, customer complaints, etc.
  • That there was good cause to terminate the contract of employment. The employer must establish the reasons from the employee for his or her poor performance. The importance of this is that the employer cannot take the appropriate intervention or assistance unless the employer knows what the cause behind it is.
  • That the employee has been afforded appropriate training, coaching and guidance. Once the appropriate assistance has been given to the employee e.g. machine maintenance carried out by the maintenance department or the employee sent for training, the employee must be given time to improve and implement the training provided.
  • That records were kept of all of the above by way of counselling and warning forms, signed by all parties.

Employees with a longer service
The performance of long service employees does not suddenly deteriorate without a reason behind it. The LRA places a more onerous duty on the employer to establish the reasons behind the deterioration in performance and to take steps to assist the employee to improve. The logic behind this approach is that employers have a human (Ubuntu) responsibility towards employees that have given them good service over the years. It is not right that employees who have dedicated themselves to an employer for years they get tossed out at the first sign of trouble.

The employer needs to establish the root cause of the problem and offer the employee assistance to overcome it – be it alcohol or personal problems. If the employee chooses not to accept that assistance, the employer has no option but to terminate the employee’s services but this must be done fairly.

Regardless of arguments of whether or not labour law is too restrictive, employers need to comply with it. Therefore it is important to understand it and to work within it. Using probation effectively is in everyone’s interests.