Friday, 06 November 2020

Employee Rights on dismissal based on non-performance

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Employee Rights on dismissal based on non-performance

According to the Human Rights Bill, rights come with responsibilities, the same is applicable in the workplace.  Rights in the workplace are mechanisms put in place to protect the employee from being violated, discriminated against, unfair treatment, etc.  Mostly these rights are defined in the policies and procedures which govern the relationship between the employer and employee.  Employees have rights and so does the employer.

Employers enter into agreements that form the basis of the relationship which they enter into before the employee starts to assist the employer to deliver on their strategic objectives, which is the basis of their employment.  These agreements do not speak to the relationship in isolation but with the policies and procedures as indicated above.

The rights and responsibilities maintain feasible mutual relations and work efficiency to create an environment where everyone can deliver responsibilities at full potential.  Human Rights belong to everyone and protects us against the actions of those who exercise power over us.

When employees are not performing their duties, they are infringing on the rights of the employer because of the agreement which has been entered into.  This agreement is a form of saying:  “I will compensate you so much for assisting me with A, B, C, and D”.

Employees have rights as citizens, but it is important to understand that in the workplace, employee rights are influenced by Human Resource policies and procedures that the employer establishes. The quality of the relationship between employer and employee could influence the performance of employees and the quality of work that they produce. However, whether there is a sound relationship or not, it is accepted that the employer is entitled to set work performance standards.

Different organizations and employers have varying work standards, but an employee in any organization cannot be dismissed because they are incompetent, helpless, or disabled. An employer is required to make an assessment before dismissing an employee for failure to meet work performance standards or lack of skill. An attempt must be made to establish the reason for the employee’s shortcomings and the employer should assist the employee to overcome such identified shortfalls.

Employers enter into performance contracts with their employees with the aim to ascertain whether the employees do meet the performance standards as required in order to implement any interventions available to close any gaps that may be identified.  For the performance contracts to be effective, assessments need to be held periodically as agreed by both parties, including any conversations that may be held during the assessment period.

The inability to deliver on responsibilities may be caused by various factors e.g. lack of training, skills, and probably experience.  It is therefore important that the employer assist the employee with interventions to ensure that all underlying causes of non-performance are identified and addressed and that there is no other alternative before the dismissal option is implemented.  The employee has a right to these interventions and whatever options that may be available to avoid dismissal.

Labour Relations Act No 66 of 1995 (as amended): dismissals related to poor work performance and incapacity is very clear on the procedures to deal with employees who are unable to perform or are incapable of doing their jobs.

There are specific procedures to be followed in addressing matters of incapacity or poor work performance and these issues should not be addressed by normal disciplinary procedures. Should an employer choose to dismiss an employee based on non-performance or incapacity, the employer should have given the employee an acceptable opportunity, there is no doubt that a ruling of unfair dismissal will be made and it is crucial for employees to explore all the rights that protect them.