In the workplace, poor work performance refers to an employee’s inability (rather than unwillingness) to meet performance standards required by the employer. Unlike misconduct, which involves rule-breaking or willful wrongdoing, poor performance arises from lack of skill, knowledge, or aptitude. Even a diligent employee might fail to meet targets if they do not have the competence or capacity.

South African law regards poor performance as a form of incapacity. While an employer can dismiss a non-performing employee, it must follow a fair and reasonable process first, giving employees a real chance to meet standards.

Relevant Laws

• Labour Relations Act (LRA), Sections 188 and 188A: Governs fair dismissals, includes the Code of Good Practice on Dismissal.
• Basic Conditions of Employment Act (BCEA): Sets minimum conditions, relevant for probation and notice.
• Guidelines and Codes: CCMA info sheets emphasizing a corrective approach to poor performance.

Employers must ensure procedural and substantive fairness when handling poor performance. Procedural fairness means the correct steps (counseling, warnings, improvement plans), while substantive fairness requires a valid reason (genuine inability to meet set standards) and that no alternative solution is feasible.

Clear, reasonable, and known performance standards are essential. Employees must understand:

• Job Descriptions: Outline tasks, responsibilities, and required competencies.
• Targets and Goals: Provide measurable metrics so employees can see how they’re performing.
• SOPs or Customary Practices: Make sure employees know the normal expectations of the role.

These standards can be conveyed verbally in induction, in writing (letters of appointment, policy documents), or learned through practice. The main requirement is that the employee should reasonably be aware of what is expected.

Initial Steps

1. Gather Objective Data: Missed targets, quality issues, repeated errors—avoid rumors or bias.
2. Check Root Causes: Are tools, training, or job design issues contributing? Distinguish these from the employee’s lack of competence.
3. Arrange a Counseling Session: Provide reasonable notice. Inform the employee of their right to bring a representative (fellow employee or union official).

Counseling Session

• Explain the reason for the meeting: discussing performance shortfalls and how to address them.
• Present evidence of poor performance (stats, examples). Avoid vague statements.
• Hear the employee’s side: maybe they need training or have personal factors affecting performance.
• Agree on improvement actions: possible training, mentoring, new equipment, or adjusted targets.
• Set timeframes for improvement and schedule a follow-up. Record the plan in writing for clarity.

A Performance Improvement Plan (PIP) is a structured document that details performance shortfalls, desired targets, and actions to close the gap. Key elements typically include:

• Specific Objectives: “Increase sales by 10 percent in three months,” or “Reduce errors by 50 percent.”
• Actions/Support: Training, coaching, or new tools provided by the employer.
• Milestones: Clear deadlines for progress checks and final review.
• Feedback Sessions: Weekly or monthly reviews to monitor improvement.

The employee should acknowledge the plan, clarifying they understand the goals and consequences. The employer keeps records of each step, ensuring a fair “paper trail.”

If the employee still fails to meet standards after counseling, training, and a reasonable improvement period, the employer may:

1. Issue a Written Warning for Poor Performance: Clarifies the situation is serious.
2. Consider Additional Time or Support: If some improvement is evident but not enough, extend or revise the plan.
3. Convene a Formal Incapacity Hearing: If performance is still below standard, the employer may hold a hearing to decide if dismissal is justified. The employee must be informed in writing of the poor performance allegations, their representation rights, and possible dismissal outcomes.
4. Make a Decision: The hearing allows the employee to respond. If the employer can show the standards were valid, known, and the employee was given a fair chance yet still underperforms, dismissal can be substantively fair. Procedural fairness must also be evident.

Probation

During probation, new hires are assessed more easily for performance. Dismissals for poor performance might be simpler, but still require fair notice, feedback, and support. If an employer dismisses or extends probation, it must consult the employee first.

Incompatibility

Incompatibility (inability to maintain harmonious workplace relationships) is also treated as incapacity. Employers should counsel, try solutions, or reassign if possible. Dismissal is only fair if the employee cannot adapt.

• Document Everything: Notes on counseling sessions, PIP details, training, and feedback prove procedural fairness.
• Realistic Standards: Targets must be achievable and not excessively high or vague.
• Offer Genuine Support: Provide training, revised workflows, or new tools so the employee has a real chance to improve.
• Monitor Progress: Provide ongoing feedback, not just at the end of a set period.
• Consider Alternatives: Dismissal is a last resort. If an employee fits better in another role, propose it (with their agreement).
• Be Consistent: Apply the same performance standards for similar roles to avoid discrimination claims.

Disclaimer: This guide is informational. For complex scenarios, consult specialized advice.