Poor performance dismissal not that simple

Labour Column Davies Ndumiso Sibanda
MANY employers have dismissed employees over allegations of poor performance and end up having to reinstate the employee because of failure to submit evidence of poor performance.

Poor performance involves establishing whether the job an employee was employed to do is done properly. The starting point is to have a clear documented performance agreement with the employee with clear standards of performance expected of the employee, the conditions under which the performance will take place and the role of the employer in creating an enabling environment must be clear.

Not long ago I had an employer who asked me to assist him draft a complaint against an employee whose performance was said to be poor. On trying to establish whether the employee had been given standards I established that he had been given the standards but soon after the employee’s appointment the business environment changed drastically in a manner accepted by the employer but the standards were not reviewed to respond to the change.

This created a problem for the employer and I advised the employer to abandon the discipline route but to go back to the work to craft a new agreement.

Employers need to be careful about purchasing popular performance management packages, which cannot be adapted to the organisation’s circumstances and changing environment as most such performance packages are not capable of standing legal scrutiny.

There are, however, clear cases of poor performance where the worker for no good reason does not meet minimum output standards, fails to meet quality standards set, fails to follow express operating procedures, fails to keep costs within prescribed levels and others. Such acts constitute poor performance and unless the employee can give convincing reasons he can be successfully disciplined.

In the majority of cases dismissing an employee for poor performance has been difficult because the employer’s complaint will not be founded on any performance agreement, at times the employer will not have provided tools for the worker to perform.

In some instances the employer will have unilaterally put obstacles to performance. Usually the courts will look at the performance agreement and check whether both parties played their roles as per agreement and the worker just did not perform.

The courts will also look at the reasonableness of the employer’s expectations from the employee in the given circumstances. If the employer’s expectations are unreasonable the courts will not sanction dismissal for poor performance.

Common cases usually involve continuous upward shifting of performance targets so that the employee fails to meet the target. I recall a case of a school uniforms salesperson who had his sales target continuously moved up until it exceeded the total population of children of school-going age in the given territory. Considering that new school uniforms are not purchased every month, the standard was obviously unreasonable.

In conclusion, employers need to be trained in performance management before they can effectively and legally manage performance of subordinates.