HR Issues – Dealing with Negligence and Poor Performance in the Workplace
Employers often find themselves frustrated by employees who commit brazen acts of negligence or willfully offer below par services, mistakenly believing that if they skate along they will be able to sidestep a dismissal. The work performance issues are sometimes not enough to warrant focused attention, but when analysed are causing harm to the employer by requiring an undue amount of time and attention being spent on managing these employees.
It is important to understand the different type of dismissals and how they can be defined to avoid complications in interpretation once challenged. Negligence on the part of the employee is a fault-based dismissal and can be classified as misconduct; while poor work performance can be fault-based or non-fault-based pushing the behaviour into the categories of either misconduct or attributed to the incapacity of the employee. Ensuring that the employer knows the difference and how they relate to the circumstances can be challenging and must follow the correct course according to the Labour Relations Act.
Poor Work Performance:
Misconduct
Where an action of an employee is deemed to be avoidable and the employee has failed to exercise reasonable care, this will be construed to be misconduct. Disciplinary actions would be followed in line with the disciplinary code as set out by the employer. The employee will be held accountable where it can be proven that the employee had the capacity to conform to the performance requirement and was able to avoid the potential poor work performance by undertaking their tasks or role to expectation, in other words they can then subsequently be blamed for the resulting poor performance and are responsible for the outcome.
Incapacity
Incapacity in relation to poor work performance addresses the ability of the employee to undertake a task as required by the employer. The incapacity may become apparent due to actual reasons such as ill health, mental issues, physical disability or even non-physical reasons such as incompetence or incompatibility issues that the employee may have.
The question to ask would be: “Did the employee try, but could not”? OR “Could the employee do it, but did not”? Replying yes to the first question would imply incapacity as the employee attempted to achieve expectation, but was unable to do so or unable to apply the necessary care. If the answer to the second question is yes, this would constitute misconduct as the employee is capable of doing what is expected of him/her, but fails to achieve what is expected which means there is a deliberate intention to not take reasonable care.
Dismissal due to poor work performance should consider whether the course of action pursued would be incapacity as opposed to misconduct based on the circumstances that have arisen and whether the employee failed to meet a performance standard and if the employee did not meet the set performance expectation were the following considered before embarking on the appropriate course of action:
- Was the employee aware or could they reasonably be expected to be aware of the performance standard required?
- Was the employee given every opportunity to meet the required standard?
- Was the dismissal an appropriate sanction for not meeting the required performance standard?
In Standard Bank of SA v CCMA (2008) 4 BLLR 356 (LC), the court noted that the enquiry to be followed by the employer before dismissing the employee for poor work performance should be run using the following guidelines:
- Is the employee unable to perform his or her work?
- If not, then to what extent is the employee able to perform?
- Is it possible to adapt the employees work circumstances?
- If none of the above can be fulfilled is there alternative work available?
Negligence and Gross Negligence
Negligence in the work place would be defined as the considered failure of the employee to adhere to the standard of care expected by a reasonable employee in particular defined circumstances within their employment. Has the employee’s conduct deviated from that which you would expect of a reasonable person considering the following:
- Would a reasonable person in the particular circumstances of the employee, have foreseen the reasonable possibility that their conduct would cause harm to another person or their property or their business?
- Would a reasonable person have taken reasonable steps to prevent such harm occurring?
- The nature of the industry and the sector of work would determine the reasonable circumstances or conduct.
Negligence would be viewed as carelessness which could occur if an employee was displaying an ordinary level of lack of care concerning a task with no malicious intent.
Gross negligence would be deemed to have occurred when there is a conscious and voluntary disregard of the need to use reasonable care, which would cause or is likely to cause foreseeable grave injury or harm to persons, property or both. The conduct would be extreme compared to ordinary negligence. Gross negligence would carry an elevated risk which could cause a serious mishap or grave repercussions.
Willful Misconduct, this is conduct that is reasonably calculated to cause damage or injury.
In order to dismiss for cases of gross negligence or willful misconduct even on a first offence, there must be proof that the employee was grossly negligent due to an act conducted by the employee that deviates from that of a reasonable standard of care that is expected in the workplace. It must be ascertained if harm was caused to persons or property or the business and the degree of gross negligence is applied to each fact. The employer should keep in mind the nature of the work as well as the position of the person employed in the Company. Considering these variables would determine the severity of the gross negligence committed and the sanction imposed could vary from a final written warning to dismissal. It is always advisable that a Company follow a protocol of progressive discipline and dismissal is reserved for instances of severe misconduct.