INCAPACITY–POOR PERFORMANCE

 

Incapacity poor performance in our law is the non-blameworthy inability of an employee to perform at the required standard. In other words, the employee is unable to cope with the work and the lack of performance is not due to his/her fault, that is it is not intentional or negligent under performance.

There are situations where an employee’s under performance is the fault of the employer, for example the employer has not provided the employee with adequate instruction or training, or the employer provided the employee with obsolete or unreliable equipment. Additionally, poor performance may also be the fault of the employer resulting from an inadequate selection and recruitment process or as a result of employees being overpromoted. 

Due to the fact that Incapacity poor performance is the non-blameworthy inability of the employee to perform at the required standard, it is managed via a counselling process, as it is not punishment oriented.  In essence the purpose of the poor performance counselling process is to identify the cause/s of the employee’s poor performance and to assist the employee to improve his/her performance to the point where he/she is performing at the required standard.  

Therefore, the counselling process should be embarked upon if the employee does not have the capability to perform at the required standard – either in respect of skills, competence, knowledge, experience; or in respect of ill health. This is not a disciplinary process where the employee can be blamed for his/her under-performance, it is a “no fault” process and therefore punishment i.e. warnings are not applicable.

There are two categories of incapacity in our law:

  • Poor performance  
  • As a consequence of ill-health or injury – (temporary or permanent)

It must be noted that if the employee’s poor performance is intentional or due to negligence then it would be treated as misconduct and the disciplinary process would be applicable. 

Counselling should therefore be embarked upon if the employee does not have the capability to perform at the required standard. 

Counselling process

The purpose of the poor performance counselling process is to determine the cause/s of the poor performance and to put in place a plan to assist the employee to perform at the required standard. 

The counselling process is a participative process in terms of which the employee’s input is important  and the employee should be given the opportunity to give input on the cause or reasons for the poor performance and to make proposals on how the poor performance can be remedied.

As the management of poor performance is a process, the number of counselling sessions will depend on the particular situation, the progress made by the employee, if any and the impact on the business.  It is important to note that the counselling process should not be rushed and the employee should be given a reasonable opportunity to improve his/her performance.  

It is essential to document and minute all of the counselling and feedback sessions and give copies of the minutes to the employee. 

If the employee remains unable to perform at the required standard despite the interventions and a reasonable opportunity to improve, the employer must consider if there are  alternatives to avoid dismissal – again with the input of the employee. These may include:

  • A different position to suit the capabilities of the employee if a position is available.
  • If possible, adapt or change the employee’s duties and/or responsibilities to reasonably accommodate the incapacity.

If an alternative position is available but at a lower rate of pay, the employee’s agreement is necessary to accept the job on those terms.

If an alternative cannot be found or if the employee refuses any alternative, the employer will be in a position to notify the employee to attend an incapacity hearing to determine the employee’s suitability for continued employment.

Take away, incapacity poor performance is the non-blameworthy inability of an employee to perform at the required standard and the process to be followed is a counselling process, unless the lack of performance is due to the employee’s fault, that is the under-performance is intentional or due to negligence in which event the disciplinary procedure would be the correct procedure.