Termination for this reason is generally known as dismissal for incapacity. As in the case of dismissals for misconduct, dismissals for poor work performance must be for a fair reason and effected in accordance with a fair procedure – ie such dismissals must be procedurally and substantively fair.
• The employee should have been aware, or could reasonably have been expected to be aware, of the required performance standard;
• The employee was given a reasonable opportunity to meet the required standard;
• Dismissal was an appropriate sanction for not meeting the required standard.
Awareness of the performance standard
Whether employees were actually aware of a performance standard is a question of fact. However, the code accepts that dismissal for poor work performance may be justified if the employees should reasonably have been aware, of the required performance standard. Relevant considerations include the manner in which the performance standard was conveyed to employees, the nature of the employee’s work and position, and any specific warrantees made by the employee regarding his or her experience, skill and qualifications. A performance standard can be conveyed to employees either by means of general directives, or by ad hoc measures such as warnings and counselling if the employee’s performance becomes deficient. The more warnings an employee has had, and the more guidance that has been given, less likely it will be that the employee will be able to deny the existence of the standard.
Reasonable opportunity to improve
If employees display shortcomings in performing their duties, fairness requires that those employees should not only be informed that their performance is deficient, and in which respects, but also that the employees should be given an opportunity to improve. The procedure for dismissals for poor work performance requires that the employee should be counselled, monitored and offered assistance before the contract is terminated.
In the case of dismissals for poor work performance employers must prove that dismissal is necessary because employees are unable to perform their particular duties.
The hearing that forms the final stage of the incapacity procedure should take the same form as a hearing for a case of misconduct, even though it is strictly speaking not ‘disciplinary’ in nature. To signify the special nature of these proceedings, they are often termed ‘incapacity inquiries’. The purpose of these inquiries is to establish whether the employee is capable of attaining an acceptable standard of work.
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