Incapacity and Poor Work Performance

INCAPACITY AND POOR
WORK PERFORMANCE
Group 1 & 2
DISCUSSION POINTS
• Definitions and policies
• Requirements for incapacity and poor work performance
• Procedures
• Case law
DEFINITIONS AND
POLICIES
Incapacity
refers to a situation where an employee is
unable to perform their job duties due to a
medical or psychological condition
An incapacity hearing will be held when either:
• The employees performance and abilities have fallen short of the required
standards regardless of the efforts to counsel the individual
• It is determined that there is a significant level of incapacity and that
counselling is neither appropriate nor practical in the given situation
• The employee will be informed of the alleged incapacity’s nature and
given at least 24 hours to prepare for the hearing
• The employee will be allowed to request the assistance to any other
employee
• The employee is entitled to the opportunity to present any supporting
arguments, evidence, and witnesses
Poor work
performance
refers to a situation where an employee is not
performing their job duties to the required
standard or in a satisfactory manner.
Before dismissing an employee for poor work performance the following
should be considered in order for it to be a fair dismissal:
• Whether or not the employee failed to meet a performance standard

• If the employee did not meet a required performance standard whether or
not
• The employee was aware or could reasonably be expected to be aware of
the required performance standard
• The employee was given a fair opportunity to meet the required
performance standard
• Dismissal is an appropriate sanction for not meeting the required
performance standard
In order to effectively manage discipline and dismissals due to incapacity and poor work
performance, it is important to have clear policies and procedures in place.
Here are some policies to consider:

• Incapacity policy: Outline the process for managing employees unable to perform their
job duties due to medical or psychological conditions, including accommodations,
medical assessments, and communication with healthcare providers.
• Poor work performance policy: Outline the process for managing employees not
meeting required performance standards, including training, monitoring, and
performance improvement plans.
• Disciplinary policy: Outline the process for disciplining employees who do not improve
despite support, including warnings, suspension, or dismissal.
• Termination policy: Outline the process for terminating employees due to incapacity or
poor work performance, including criteria, notification, and right of appeal.
• Accommodation policy: Outline the process for providing accommodations to
employees with medical or psychological conditions, including types of
accommodations and request process.
REQUIREMENTS IN CASES OF
I N C A PA C I T Y O R P O O R W O R K
PERFORMENCE
When it comes to disciplining or dismissing an employee due to incapacity or poor work
performance, it is important to follow a fair and consistent process.
Here are some of the requirements to consider:

• Documentation: Keep detailed records of concerns, communication with the employee,
support provided, and performance improvement plans implemented in cases of
incapacity or poor work performance.
• Investigation: Conduct a thorough investigation to determine the reasons behind the

employee's performance issues, including gathering information from various sources.
• Notification: Notify the employee of concerns and potential consequences, and give
them an opportunity to respond and provide relevant information.
• Support and assistance: Consider providing support or assistance, such as training or
coaching, to help the employee improve their performance before taking disciplinary
action.
• Performance improvement plan: If performance does not improve, implement a

performance improvement plan with specific targets and timelines.
• Fair process: Follow a fair process if disciplinary action is necessary, including

providing written notice, allowing the employee to respond, and providing the right to
appeal the decision.
PROCEDURES IN CASES OF
I N C A PA C I T Y O R P O O R W O R K
PERFORMENCE
Application of the
procedure
•The procedure applies to all employees except probationary employees or employees
who have failed to reach a required performance standard due to ill health or injury
•This procedure is to be applied in cases of incapacity – poor performance only.
•Poor performance is not to be addressed as a disciplinary matter
•Poor performance may be described as an employee who is not performing to the

standards required by the employer
•This procedure must be read in conjunction with the Code of Good Practice – Dismissal
in Schedule 8 of the Labour Relations Act , no 66 of 1995.
Dismissal for poor
performance
• Dismissal of this manner is justified when an employee consistently fails to meet job expectations
despite reasonable attempts from the organisation to address these issues.
• An employer is entitled to expect employees to meet acceptable levels of performance which are of
the standard of the organisation to function effectively and productively
• The employees have the right to expect to be dealt with fairly when they do not meet the expectations
of the job.
• Depending on the nature of the job the employer must give the employee feedback, evaluation,
training, or guidance on how to meet the expected level of performance.
• Employers may dismiss an employee for poor work performance if they are unable to meet the
required performance standard within a reasonable time, despite training, guidance and instruction.
Objectives of the
procedure
The objectives of the poor work performance procedure are to:
• Assist employees to overcome poor performance and perform to the standard;

• Promote efficient and effective performance by employees;
• Enable the employer to function efficiently and effectively;
• Assist the employer to apply corrective action where applicable
Objectives of the
procedure
The objectives of the incapacity procedure are to:
• To develop a process that will allow non-compliance with standards or contractual

obligations to be found and fixed
• Applying the proper course of action to fix such a breach with the goal of improving
the employees poor performance
Responsibility for application of
procedure
It the responsibility of the employer to:
• Constantly monitor the performance of all employees;

• Properly identify cases of poor performance on time;
• Decide when it is necessary to apply this procedure, and upon so
deciding;
• Quickly address the issue of poor performance with the employee in
accordance with this procedure
C A S E L AW
Wilcocks v Khawula N.O and Others
Summary:
• Khawula was a manager in the employer’s business. He suffered from illness and after
applying for sick leave on a few occasions (for 90 days in total) he was informed that
the employer regarded his absence from work due to illness as excessive.
• The employee was informed that an incapacity hearing would be convened to address
the issue. The employee, at the time of the hearing, requested a postponement on the
basis that he was unable to obtain reports from the various doctors within the
timeframe allowed and at the same time, the applicant requested copies of the
documentation on which the third respondent intended to rely.
• The request for a postponement was refused and the hearing proceeded.
• The employee was dismissed after a medical incapacity enquiry was conducted at the
workplace and the CCMA agreed with the employer that the dismissal was fair, both
substantively and procedurally.
• The applicant sought this finding to be reviewed by the Labour Court.
Ruling
• The judge in the Labour Court disagreed with the conclusion of the chairperson in the
hearing and the arbitrator in the CCMA, stating that dismissal should be a last resort
in cases of ill-health incapacity, especially when the incapacity is work-related.
• The judge emphasized that medical boarding, which allows for retirement due to
medical incapacity as per benefit fund rules, should be explored as an alternative to
dismissal.
• The Court ultimately found the CCMA award to be set aside, ruling that the dismissal
was procedurally and substantively unfair. The Court ordered the employee to be
reinstated.
Group opinion
• The CCMA’s ruling was unfair, and therefore we agree with the Labour court.
• Khawula was not allowed a chance to respond and was not given enough time to
prepare for the hearing.
• He was not given any considerations despite the fact the he was incapacitated by work
related illness. The employer was supposed to accommodate the employee.
• Where there is the prospect of medical boarding, a retirement in terms of the rules of a
benefit fund must be established precisely to cater for medical incapacity.
• Employers should not be hasty to dismiss an employee due to medical incapacity,
Employers must explore all alternatives before deciding to dismiss, in good faith.
Thank
You
Please feel free to ask questions and give your opinion

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INCAPACITY AND POOR

• Definitions and policies

• Requirements for incapacity and poor work performance

• Whether or not the employee failed to meet a performance standard

Here are some policies to consider:

Here are some of the requirements to consider:

• Investigation: Conduct a thorough investigation to determine the reasons behind the

• Performance improvement plan: If performance does not improve, implement a

• Fair process: Follow a fair process if disciplinary action is necessary, including

•This procedure is to be applied in cases of incapacity – poor performance only.

•Poor performance is not to be addressed as a disciplinary matter

•Poor performance may be described as an employee who is not performing to the

• Assist employees to overcome poor performance and perform to the standard;

• To develop a process that will allow non-compliance with standards or contractual

• Constantly monitor the performance of all employees;

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