If you state the cause, you may be limited in court to only using that reason for the termination. Print the letter on company stationery and have it signed by the employee's manager or the company owner. When it comes to poor performance, the employer must follow a poor performance management procedure. The easiest termination meetings are held when the prep has been done in advance. – Any person determining whether a dismissal for poor work performance is unfair should consider – The result of this is that they end up dismissing people for the wrong reasons or follow incorrect procedures prior to dismissal. If therefore your employer would otherwise have a good reason to dismiss you on capability […] Fairness of dismissal for incapacity | Labour Guide. Operational requirements are de Your performance has been assessed many times and you have been informed about it multiple times. The existence or otherwise of capability and fault / blameworthiness for the lack of performance on the part of the employee determines whether one is dealing with misconduct or incapacity. The Applicant’s challenge to that determination is premised on the Code of Good Practice contained in Schedule 8 to the Act and in which, it is submitted, a clear distinction is drawn between dismissals for misconduct and dismissals for incapacity which, in turn, can be constituted either by poor work performance or by ill-health or injury. t Their agreement to "start over" was a metaphor for an agreement to be more positive and not a negation of the history that was already "on the record". Use this sample dismissal letter as a guide, but as in all situations that can result in legal action or other events that are not in an employer's best interests, run your letter by your employment law attorney before you send it to the employee. The 5 steps PRIOR TO dismissal for incapacity: Ill health / injury NB: Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. Incapacity because of ill-health differs from poor work performance because there can be no fault attributed to the employee for incapacity due to ill-health or injury. It was common cause that after the July hearing, management went easy on her. (1998) 7 ARB 6.9.5, NEHAWU v University of Cape Town and Fry’s Metals (Pty) Ltd v NUMSA, The University Of The North v Franks & others, CCMA’S OPERATIONS DURING THE COVID-19 PANDEMIC. Conduct a process of handling employee poor work performance o Understand the relevant legislative principles and requirements in dealing with employee incapacity due to poor work performance; Follow a set of guidelines on actions to be taken should an employee fail to meet performance goals or objectives due to incompetence (poor work performance) You may feel sorry for the employee, be sorry you hired them, or sorry they didn’t work out — but apologies infer you are sorry they’re being fired which undermines your position. You don't want to terminate for cause thinking that you have solid documentation—only to find out later that you don't. An important factor is that the capacity or incapacity of the employee refers to past performance, and not to an " inability to meet an entry-level requirement for a new or a redesigned job." ‘ it was impermissible for the employer to dismiss the first respondent on grounds of incapacity/poor work performance alone, as it sought to do, without first (a) conducting an investigation to establish the E reasons for the unsatisfactory performance , (b) giving the employee the right to be heard; (c) giving the employee appropriate evaluation, instruction, training, guidance and counselling, and (d) after a … Here Are Rejection Letter Samples to Send to Unsuccessful Applicants, answers the employee's most obvious questions. She resented criticism and dubbed it as interference The commissioner considered that the company had adequate grounds to terminate services for poor performance exacerbated by a breakdown in the employment relationship. FORMAL PERFORMANCE ASSESSMENT Progressively firmer steps by means of recorded counselling sessions, outlining the consequences of continued lack of improvement, such as a formal poor work performance investigation. She contested the validity of this warning as she had understood that the parties had agreed to ‘let bygones be bygones". He could not possibly have been independent or neutral on hearing the appeal. At the hearing the employee requested postponement because she had not had enough time to prepare. Evidence of the employee’s poor performance (such as examples of inadequate work, or complaints by customers or colleagues) should be retained and shared with the employee at each stage of the process. t POOR PERFORMANCE The Labour Relations Act, recognises three types of dismissal, namely: - Misconduct - Operational requirements (retrenchment) - Incapacity (ill health, injury, poor performance) Schedule 8 of the Labour Relations Act lays down the following Code of Good Practice when dealing with poor performance;- “9. Dismissal for Alleged Incapacity: POOR WORK PERFORMANCE This checklist has been prepared having regard to the CCMA Arbitration Guidelines, the Code of Good Practice: Dismissal and relevant case law v34 Go to www.purshotam.co.za for an updated version of this document plus many more aids NB: The law does NOT require that each and every Your lack of performance at work, or “capability” as it it known under employment legislation, is something that can trigger a dismissal. Dismissal was an appropriate sanction for not meeting the required performance standard. You still managed to meet your target for the third year in a row which you had agreed upon with your manager. (c) Workplace Performance Technologies (Pty) Ltd t/a Workinfo.com. The Covid-19 pandemic is a “ force majeure ”. Incapacity because of ill-health differs from poor work performance because there can be no fault attributed to the employee for incapacity due to ill-health or injury. Section 188 of the LRA recognises the fairness of dismissal for incapacity. INCAPACITY Introduction. You will need to keep the company informed of your contact information so that we are able to provide the information you may need in the future such as your W-2 form. The 5 steps PRIOR TO dismissal for incapacity: Ill health / injury NB: Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. 8. Incapacity in labour law is the non-blameworthy breach of a workplace/performance standard, i.e. If an employer allows an appeal, a neutral person must consider it. Because poor performance and misconduct differ, the procedures for dealing with them are also different. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. He only knows that what is happening is unacceptable to him, and the employee must be dismissed as quickly as possible. If the employee's manager has kept performance documentation, have your human resources staff check the documentation to make sure it is dated and will pass legal muster. Ms. Margaret O'Malley18361 Cliff StreetSparta, NJ 07871. The LRA clearly differentiates between the reason for dismissal for poor performance and ill-health or injuries. This letter confirms your dismissal, so we have accounted for all company-owned items termination.... 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