Often employers misdiagnose poor performance as misconduct. While both instances require a process to be followed before dismissing an employee, these processes are different in nature, and if misconstrued, it could result in the employee being subjected to an unfair process. In the aforementioned case, the CCMA dealt with such an instance of alleged gross negligence and gave guidance on how to distinguish capacity, in the form of poor performance, from misconduct.
Turner was employed by Environ as a brand manager during March 2021. She reported to the brand marketing manager, Wessels. Turner underwent training and induction with another co-worker, Makepeace, who commenced employment around the same time. Makepeace was also appointed as a brand manager but for a different area.
During 2021 certain deficiencies in Turner’s performance were noted, especially around her knowledge of skincare. Wessels closely managed Turner, i.e., gave her detailed feedback and had her complete timesheets to manage her time more effectively.
The working relationship between Turner and Wessels became strained and she was issued with a warning during December 2021. Turner complained that due to the long hours and being placed under immense pressure, she was unable to cope with the workload and her mental health was suffering. In the same month Environ informed Turner she would be placed on a performance management programme, which was not eventually formally implemented as allegations of misconduct were brought against Turner.
During January 2022 Turner submitted a project to Wessels which was ‘riddled with mistakes’. When Wessels received the document she commenced with corrections thereto, to only discover the following day that Turner had also worked on the same document, ultimately resulting in Wessel’s work on the document not being necessary.
The above instance resulted in the allegations of gross negligence being brought against Turner, for which she was dismissed. Turner referred an unfair dismissal dispute to the CCMA.
Turner argued that the dismissal was unfair as “the issues at the heart of the dispute, relates to performance, and ought to have been dealt with …” as such. Environ argued that (i) Turner was a senior employee and it had no obligation to performance manager a senior employee; (ii) holding a performance enquiry would not have changed the sanction of dismissal; and (iii) as Turner was a risk to the company, summary dismissal was an appropriate sanction.
The commissioner stated, inter alia, the following in her award –
- It had to be determined whether Turner’s conduct amounted to negligence or was it due to poor performance? Incapacity due to poor performance is less ‘blameworthy’ than misconduct;
- Turner accepted that she was not performing, she worked long hours and under pressure to meet deadlines. Environ identified the need for a performance improvement programme but never implemented it. She did not accept being accused of misconduct;
- Turner was not negligent in that she was not performing at the same level as Makepeace. “Individuals respond differently to a particular working environment and its pressures”;
- The real reason for Turner’s dismissal was due to her poor performance. It was not that Turner ‘would not’ do her work, it was simply that she ‘could not’ do her work correctly; and
- Casting incapacity (poor performance) as misconduct (negligence) may result in an unfair procedure as the Code of Good Practice: Dismissals directs an employer to follow very different processes. While the commissioner could not comment on whether or not more time would have resulted in Turner’s performance improving, Turner should have been provided with guidance and time to improve though the performance Improvement programme. The misconduct route denied Turner this opportunity.
The Commissioner held that Turner’s dismissal for gross negligence was substantively and procedurally unfair, and awarded Turner two (2) months remuneration amounting to R119 000.00.
Employers are cautioned against using misconduct as a means to expedite the potential exit of an employee who is not performing, and portraying poor performance as a form of misconduct. The most important takeaway from the above mentioned case is to determine if the employee will not do the work versus can the employee genuinely not do the work?
While performance management processes may take more time and energy, it is a more fair (and generally legally correct) approach when an employee is not meeting the employer’s reasonable performance standards.