No-fault dismissals: What is that?

In our law we have dismissals for misconduct as well as ‘no-fault’ dismissals. This article will focus on the latter but not in respect of operational requirements.

‘No-fault’ dismissals are ones related to the poor performance or ill-health of an Employee. Said differently, the Employee may be dismissed for something that is in fact out of his/her control. The Employer in such cases does not need to prove fault on the part of the Employee. It is simply a case where the Employee is unable to render his/her services sufficiently or not at all which naturally has a serious impact on the Employer’s business.

Ill health as a form of incapacity is a problematic issue for any Employer to know when you need to, or can, commence with formal ill health procedures. On the one hand you are expected in law to afford the Employee the opportunity to recover and return to work and on the other hand you need to keep your business running smoothly.

There is no set time frame in which to decide that you, as the Employer, need to commence with such proceedings; it is based to a large extent on the nature of the work the Employee does within the Company and the needs of the business.

The Employer must be conscience of the balancing act required between the needs of the Employer and the Employee and the impact of such proceedings on both parties.

When deciding to follow an incapacity investigation and subsequent enquiry procedure, an Employer should first consider things such as the nature of the incapacity, what caused the incapacity if this can be determined, the possibility of the Employee recovering and the probability of improvement or even the reoccurrence of such an incapacity. The period of absence by the Employee and its effect on the Employer’s operations must also be considered as well as the effect of the Employee’s incapacity on co-Employees. The Employee’s length of service and work record must also be factored in.
An Employer must look at whether the Employee can do the same tasks he/she was doing before falling ill. If the Employee is not able to do so, then the Employer must look at the extent to which the Employee is incapable of doing the work.

An Employer can make use of a temporary Employee to fill the sick Employee’s position only until the Employee returns to work. An Employee on temporary or permanent disability leave must keep their Employer updated at every stage regarding their diagnosis and expected date of return. Also, note that an Employee’s sick leave must be exhausted first, then their annual leave, if any, before it becomes unpaid leave. This must be communicated to the Employee.

In terms of the process to be followed, be guided by the following:

The Employer must hold an investigation meeting with the Employee present, giving that Employee the right to bring evidence, witnesses and a representative with to the meeting. The representative can be a co-Employee or a shop steward, if applicable. The use of an interpreter must also be offered. Legal representation, although not an automatic right, can be allowed by the Employer after application for such has been made. The Employer must consider alternate work options to try and accommodate the Employee, so far as possible. If after the investigation meeting it is clear to the Employer that the Employee is no longer suitable for the position and that there is no suitable alternative, the Employee can be dismissed. So long as the Employee is terminated in line with the law taking into account procedural and substantive fairness, this in all likelihood would not succeed if it were to be referred to the CCMA/Bargaining Council as an unfair dismissal.

Poor performance is a bit different in that the Employee has the ability or choice to try to work harder or faster, but if the Employee is not able to provide services at the level required by the Employer, the Employer can dismiss the Employee for poor performance, once a proper process has been followed in terms of the law. Again, this includes procedural and substantive fairness.

In this process, the Employer must hold a counselling meeting with the Employee to investigate what the problems are that the Employee might be experiencing resulting in diminished work performance. The Employee is allowed to have a co-Employee or shop steward help to represent him/her.

The Employer needs to be specific regarding the areas in which the Employee is failing to perform satisfactorily. The Employee is then given an opportunity to voice any questions or concerns he/she might have. The Employer will thereafter need to give the Employee time to try and improve in those areas. This timeframe can vary as it depends on the nature of the work e.g. a teller may need 2 weeks to improve whereas a sales manager may need 1 month to do so.

The Employer must note that there are no set number of counselling sessions required before a poor performance hearing can be held. This is subjective, but fair procedures must always be adhered to.

A hearing can be held after the Employee has been afforded ample time and been provided with all the necessary tools needed to better their performance yet the performance is still not at the required level for the Employer. The Employee must receive a formal Notice to Attend a Poor Performance Hearing and allowed a reasonable amount of time to prepare; this is usually 48 hours.

The Employee must be informed of his/her right to an interpreter, to bring witnesses, to cross-examine the Employer’s witnesses and to be represented by a co-Employee or shop steward, if applicable. Legal representation, although not an automatic right, can be allowed after application for such has been made and granted by a Chairperson.

The Chairperson will need to consider the degree of under-performance by the Employee, the ability to improve, the degree to which the Employee improved during counselling and the impact such poor performance has had on the Company, to name a few.

Employees must be informed of his/her right to lodge an internal appeal, in accordance with the Employer’s Incapacity Code, should he/she not be satisfied with the outcome of either process. Thereafter, the Employee has the right to refer the dismissal to the CCMA/Bargaining Council within 30 days of the date of dismissal.

In general, it is always advisable that meetings between Employer and Employee should have minutes taken and the meeting even recorded, where possible. This helps the Employee as much as it helps the Employer, if necessary, later on.