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Poor Performance or Misconduct

 Poor Performance or Misconduct

If you ask managers whether everyone under their control gives a ‘fair day’s work for a fair day’s pay’ most will concede that some do not. Yet dismissals for poor performance are rare. Why is this when it is not unreasonable to expect employees to give a ‘fair day’s work for a fair day’s pay’?

Unfortunately in South Africa there is a tendency for managers to resort to disciplinary action too quickly when faced with employees who do not conform to rules or work standards. The Labour Relations Act sets out different procedures for how to deal with and ultimately, dismiss employees for poor performance, incapacity and misconduct. The disciplinary procedure is only appropriate for dealing with misconduct, not poor performance.

The procedure for dealing with poor performance requires that an employer establish work standards and ensure that the employee has received adequate evaluation, instruction, training, coaching and counselling in those work standards. The employer is also required to allow the employee a reasonable time to reach the work standards.

New employees
With new employees, employers often go wrong because they don’t induct them properly and do not pay them enough attention in the early stages of their employment. Where a poor selection has occurred, failure to address an incompetence problem early will complicate matters. The inclusion of a probation clause in the employee’s contract of employment and a proper induction programme will circumvent a lot of difficulties. If a poor selection has been made, the sooner that employee moves on, the better it is for all concerned, including the employee himself. Being seen as a failure in a job is not good for anyone’s self esteem!

Technology
We live in a world where technology is constantly changing. Sometimes employees are unable to cope with changes in technology in their jobs. Terminating the services of such employees is unpleasant and difficult to deal. People feel sorry for them and often cover up for them. This can also be a reason why poor performance is often tolerated.

Performance management systems
Where an employer has implemented a proper performance management system, the system should identify cases of poor performance and ensure that these cases are addressed. How they are addressed however, is another story.

Blurred lines
Whilst the LRA sets out three different procedures, it is not always clear which one to implement when faced with a case of poor performance. For example an employee who is abusing substances invariably keeps that fact away from his or her employer. When his or her performance begins to deteriorate, the employee will offer a variety of excuses in order to cover up the real reason. Faced with a series of careless mistakes and failure to meet deadlines, the supervisor might think that he is dealing with poor performance, when the real problem is substance abuse. This requires that the procedure for incapacity be applied. Efforts in training and coaching the employee in work standards will be wasted.

Can’t do versus won’t do
It is also often not clear as to whether poor performance is due to the employee’s inability to do the job or whether it is negligence or even recklessness. Therefore when dealing with apparent poor performance, one needs to establish whether it is a case of ‘can’t do’ or ‘won’t do’. If the employee has been given reasonable training and instruction and is still unable to cope, one can assume that it is a case of ‘can’t do’. In these cases the employer has a duty to assist the employee to achieve the required work standard by giving the employee instruction, coaching and training. If however, after a series of meetings aimed at assisting the employee by these means, the employee is still unable to meet the standard, the employer may ultimately terminate the employee’s contract of employment after an enquiry.

If however, the poor performance was due to the employee’s carelessness or failure to follow standard operating procedures (i.e. ‘won’t do’), then it is not poor performance – it is misconduct. Depending on the seriousness of the situation the employee could be dismissed for a first time offence on the grounds that the employee should have known better and possibly the lives of others or the very future of the business was threatened. A good example would be of a driver of a company vehicle driving at 180 kms in a built up area.

In most cases however, the employee might be warned not to do what ever it is he or she did or did not do. However, before resorting to disciplinary action, it is best to try to establish the underlying cause. Why is the employee being careless or failing to follow procedures? Giving warnings when the underlying cause is due to a personal or ill-health problem is not likely to have the desired results. It can also lead to problems of unfairness.

Causes of poor performance
When an employee’s performance starts to deteriorate, there is always an underlying cause. These causes can range from work related problems such as poor systems and procedures, faulty materials or machinery to a lack of support. Demotivation due to poor management and personality clashes with bosses and colleagues can also lead to poor performance. The employee might not be at fault at all!

Sometimes the causes may not be work related but could be such that they cause the employee to ‘go off the rails’. These can include personal problems such as financial and family problems, compulsive gambling, substance abuse (by the employee or a family member), depression and psychological disorders.

Employees suffering from severe medical conditions may also exhibit symptoms of poor performance without appearing to be ill or taking time off work due to ill health.

It is as well to realise that poor performance seldom occurs in isolation. A deterioration in an employee’s performance is usually accompanied by other problems such as absenteeism and excessive sick leave, poor timekeeping, mood swings and non-conformist behaviour. This makes the choosing of which procedure to follow difficult. Do you discipline or do you focus on the poor performance?

Formal referral system
Our view is that if one is to effectively deal with poor performance, incapacity or trends of minor misconduct, it is absolutely critical to establish the underlying causes or causes. Therefore before choosing which procedure to follow, we recommend the use of a formal referral system for identifying what the underlying problem is. This entails the employee being referred for medical evaluation and/or psychological counselling to establish the underlying cause behind the employee’s poor performance or non-conformance.

Once the underlying cause(s) has been identified, the employee may be offered rehabilitative counselling or treatment. Most importantly it is imperative to involve employee representatives in the process so that there is fairness and transparency.

However, one can only help a person who is prepared to help himself. If the employee is not prepared to address the underlying problem, be it substance abuse or a personal problem, no corrective action is going to help. In these circumstances, once the employee’s failure to accept assistance is properly documented, the employee’s services can be terminated via the correct LRA procedure without comebacks.

 

For more information on Managing Poor Performance and Incapacity contact B&A today.

What do you do when an employee refuses an instruction?
Common law requires employees to carry out the instructions of their employer and in addition to that, most employment contracts include a clause to the effect that:

“The Employee shall notwithstanding the above job title, be obliged to carry out any lawful instruction given to him / her by the Employer even though this may not be related to his / her position.”

In other words, as long as the instruction is lawful, the employee is contractually bound to carry it out. Failure to do so constitutes insubordination and can result in summary dismissal (i.e. dismissal without notice or notice pay).

It might look straightforward but unfortunately these situations often go awry for employers, especially when managers become angry.

Calling the boss an idiot found not to be grounds for dismissal
For example, a number of years ago in a well reported case, a General Manager was dismissed for insubordination after he had called his new Managing Director an idiot. It transpired that the Managing Director had wanted to retrench employees immediately, without following the required LRA procedure.

The GM had refused to carry out the instruction, calling his boss ‘an idiot’ in a heated discussion. This ultimately led to the GM being dismissed for insubordination and him referring his case to the Industrial Court. The Court found the dismissal to have been unfair and awarded compensation. In its judgement, the Court inferred that the MD’s conduct had indeed been idiotic because the he had expected the GM to carry out an unlawful instruction.

Similarly, a manager may not expect an employee to carry out a task which would expose him or her to danger not normally connected with the performance of his / her duties or which could result in the employee facing disciplinary or criminal charges.

The difference between insubordination and insolence
The Oxford dictionary defines insubordinate as ‘disobedient; rebellious’. Insubordination must be distinguished from insolence which is defined as ‘offensively contemptuous or arrogant; insulting’. While insolence may well result in dismissal, it is not considered as serious as insubordination. This is because insubordination goes to the root of the employment relationship. The employer pays the employee to carry out instructions. If the employee refuses the whole employment relationship breaks down.

‘It’s not my job’ is no excuse but look for the underlying cause
Refusals to carry out instructions because ‘it’s not my job’ usually stem from employees being misinformed or misled by others, especially in the lead up to strikes. Employees may also refuse to carry out instructions if they feel that they are being singled out unfairly or are being overloaded with work. There is usually a lot of underlying emotion involved in these situations and it is advisable therefore to treat these situations sensitively.

Employee’s point of view
From an employee’s point of view, if you feel aggrieved by an instruction, rather than put yourself at risk, comply with the instruction as best you can and then lodge a grievance. DO NOT REFUSE to carry out the instruction, no matter how right you think you are, as it could cost you your job.

From the employer’s or manager’s point of view, these are really ‘no-win’ situations so they need to be handled carefully.

GUIDELINES FOR HANDLING A REFUSAL TO CARRY OUT AN INSTRUCTION:

1. Explain why the task is necessary and give the employee the instruction in a clear and unambiguous manner e.g. “I am giving you a lawful instruction to ……………….”
2. If the employee refuses, ask why? Listen to understand – not to respond.
3. If there is no good reason for the refusal, explain that refusal to carry out the instruction is a serious breach of the employee’s contract of employment.
4. Explain the consequences of continuing to refuse to obey the instruction: e.g. “Your refusal / failure to obey this instruction constitutes a serious disciplinary offence and will result in a disciplinary enquiry which COULD lead to your dismissal.”
5. Give the employee a deadline by which to carry out the instruction. This should be reasonable and allow a cooling off period for the employee to reconsider his / her actions.
6. Put the instruction in writing and ask the employee to sign acknowledgement of receipt. If the employee refuses to sign, call a witness, read out the instruction and ask the witness to sign.
7. If the employee has not carried out the instruction by the set time limit, suspend the employee from work and tell him / her to report to you the following morning. This will allow a further ‘cooling off period’ for the employee to consider the consequences of failing to carry out the instruction.>
8. The next day establish whether the employee has changed their mind. If so, issue the employee with a written warning (which may be a final warning depending on the circumstances). Allow the employee to go back to work but make sure that the employee actually carries out the instruction.
9. If the employee still refuses to carry out the instruction, issue the employee with a notice of a disciplinary enquiry and suspend the employee from work. The charge will be Insubordination – failing to carry out a lawful instruction in that you ……. (Details of the instruction). The suspension must be on full pay and the employee must be given at least 24 hours’ notice of the enquiry (48 hours is preferable).

If a process like this is followed and the instruction is lawful and reasonable, the employee will have only himself to blame for his dismissal. In the event of the employee contesting the dismissal, it can be easily justified by the employer.