In respect of incapacity poor work performance, the following is apparent from the Code:
- The requirement of appropriate evaluation, instruction, training, guidance or counselling has been maintained
- A reasonable period of time for improvement has also been maintained
- And, lastly, provision of an opportunity to the employee to respond to the allegations of incapacity poor work performance still exists
During the workshop, specific attention will be paid as to how the aforesaid requirements are to be applied at your workplace (in the light of the latest case law developments) and recommendations in respect of non-compliance or improvements will be made.
It is of importance to appreciate that, in respect of both incapacity poor work performance, as well as incapacity ill-health or injury, an application of the Code and an incorporation of the latest case law developments will not be able to take place unless:
- Firstly, operational standards have been established
- Secondly, such standards must be reasonably achievable
- Thirdly, the employee was aware, or reasonably could have been expected to have been aware, of the said operational standard(s)
- And, fourthly, the employee was given a fair opportunity to meet such standard(s)
During the workshop, specific attention will be given to the establishment of appropriate operational standards and the approach to be adopted to meet the requirement that these must be reasonably achievable.
And that brings us to the exception created in the Code as to warning employees occupying various categories that, if performance does not improve, dismissal may follow – we will assist you in identifying such positions in line with the requirement that employees occupying such positions have the knowledge and experience to enable them to judge for themselves whether their performance is inadequate.
During the workshop, in respect of incapacity ill-health or injury, we will, amongst others, deal with the following aspects:
- The consequences of the incorporation of mental ill-health or injury in item 21(1) of the Code
- The different approaches to deal with temporary or permanent incapacity, respectively
- The duty on the employer to consider possible alternatives short of dismissal
- The specific procedural fairness requirements applicable to an investigation to determine, amongst other things, whether or not dismissal is the appropriate sanction
- A distinction between incapacity ill-health relating to alcoholism or drug abuse and misconduct based on alcoholism or drug abuse
- The duty on the employer to accommodate the incapacity of the employee
A new feature in the Code is the approach adopted that entails that supervening impossibility of performance, e g im- prisonment, is to be regarded as incapacity. During the workshop, we will unpack both the substantive and procedural fairness requirements applicable to such new ground of incapacity.
And, lastly, that brings us to the new statutorily-created ground of incapacity, namely, incompatibility. During the workshop, we will, amongst other things:
- Determine under which circumstances the aforesaid will amount to the inability to work in harmony with an employer’s business culture
- The circumstances under which such incompatibility will exist when there seems to be a lack of harmony with fellow employees
- Some of the more important substantive fairness requirements relating to incompatibility so identified from recent case law
- The suggested procedural fairness approach to be followed in the above regard
Employer-employee-specific workplace material to be provided to the SALLR facilitator before the workshop and to be considered during the workshop
Sample employment contracts covering various categories of employees, such as permanent fulltime employees and scheduled employees, appropriate policies, practices and procedures, forms currently used and appropriate collective agreements.
Approach to be adopted during the workshop
The workshop will commence with an analysis of the current approach adopted at your workplace, followed by an audit to determine the level of your non-compliance with the new requirements. Thereafter, a joint action plan will be developed to give effect to the issues identified in the audit – lastly, and most importantly, at the end of the workshop you must be in a position to initiate what is required of you to implement the action plan to ensure the required compliance levels.
