Labour law | Managing poor work performance

By Carol Tissiman

If you ask any HR consultant working in the business environment, they will agree that the role managers most neglect is that of managing staff performance. We tend to find it easier to deal with performance of things like vehicles, machinery, equipment, finances, stock. It is no wonder, since problems with our human assets or human capital are often more complex and less comfortable to deal with and this aspect of management is one of a manager’s most difficult tasks.

It means we have to know the basic labour law framework, be able to correctly analyse the problem, think through the possible remedies and implications and be clear about what resources we have to apply. It also means telling the truth and being direct and open with employees, which is not always easy.
 
When someone is not performing to standard and you have decided to start taking action, be certain that you are aware of the legal implications. Ask yourself if the employee was clearly aware of your expectations of their performance. Are you sure that you are measuring things that are meaningful and relevant and have these been well explained and understood?  

A good performance management system is objective – i.e., the employee must not be paid or “appraised” on the basis of how the boss subjectively evaluates him. It needs to be workable, well structured and supported by management and staff. A good system will also assume the delivery of quality, encourage a real sense of ownership and responsibility, and be evidence of good governance. Essentially, if a performance management system is a reward system, then it is also a punishment system. If people will benefit materially from performing well, then it stands to reason that they will be punished (disadvantaged) if they don’t perform well.  There are consequences for such things but, to be lawful, they need to be fair, with targets that are achievable and well understood.

Fair dismissal
For a dismissal for poor performance to be fair, the performance management should not be seen as a single event. Rather, it needs to be an ongoing process throughout the whole cycle of employment.

So, in practical terms, fair dismissals on the basis of poor performance need the following in place:

• Clarity on the outputs and objectives of the organisation
• Understanding of how job roles fit into the whole
• Agreement on what is really important in the employee’s job itself
• A documentation system that is effective and is used correctly
• Moderated and fair values attached to performance
• Managers and staff who are well trained in and support the company’s performance management process, have regular performance discussions with their staff, ensure the correct analysis of performance problems, and take effective remedial action.

Carol Tissiman is a professional HR Consultant, and the course convener for the 8-week online UCT (Law@Work) Practical Labour Law Course. The course introduces the key areas of applicable South African Labour Law, and focuses on the practical application of good business practice, procedure and governance in the workplace aimed at getting the best out of staff while staying within the Law.