To Discipline or to Counsel?

Apr 12, 2023

Disciplinary procedures are applied where an employee has broken a rule or standard in the workplace, and where it can be shown that the rule or standard was in place, and was known to the employee, and that the employer has consistently applied that rule or standard. This means that in the past, when that same rule or standard has been broken, the employer has applied disciplinary action. He has not acted in some transgressions and overlooked others.

Thus misconduct refers to the employee’s behaviour in the workplace. Misconduct is always the fault of the employee. No person misconducts himself by accident.

Counselling procedures, on the other hand, have nothing whatever to do with the employee’s behaviour in the workplace.

Poor work performance, other than being caused by ill health or injury, is seldom the fault of the employee. It is due to some outside influence, usually over which the employee has no direct control.

Counselling procedures apply in cases of poor work performance – a failure by the employee to reach the employer’s required standards of quality and quantity. This has nothing to do with the employee’s behaviour at work.

An employee can be an absolute star performer in terms of productivity, exceeding all expectations in terms of quantity and quality of output. The same employee can, at the same time, be a total disaster in terms of observance of company rules and regulations. Conversely, an employee can be an absolute angel in observance of company rules and regulations, but be a complete failure in terms of job efficiency.

Thus while disciplinary procedures are concerned with the employee’s behaviour at work, the poor performance procedures are concerned with how the employee does the job. Thus there are vastly different procedures for addressing the differing problems.

The procedures for addressing poor work performance seems to present the biggest headache for employers – we receive enquiries where employers report that they have been counselling the employee for a year or even longer, without improvement – and by this time the employer is desperate.

The process really is quite simple. Evaluation – to establish those areas where the required work performance standards are not being met, followed by counselling to establish what factors are preventing the employee from reaching the required standards, followed by guidance on how best to address those factors, and including training if required.

A certain reasonable time period is allowed for the employee to then reach the required standards, and should that not be achieved, a further session will follow whereby the issues are again discussed and a final time period is agreed upon for improvement. Should success still not be achieved, then a final meeting will probably result in dismissal.

There is no reason whatsoever for counselling, etc. to continue for longer than 2 or 3 months at the outside. Certainly, a period of 12 months or longer is far too long.

The above does not apply in instances where the poor performance is caused by ill health or injury – in such cases, the process is different, but the common factor is that both processes may culminate in dismissal.

Employers need to be aware that there is no requirement in any legislation compelling employers to employ people who are simply not capable, for whatever reason, of reaching and maintaining the employer’s required standards of work performance.

Employers must ensure that the problem is correctly identified, and that correct procedures are applied. To apply disciplinary procedures in cases of poor work performance, and finally dismiss the employee, is a sure road to disaster, which is almost certain to result in the CCMA ordering reinstatement of the employee.

Disclaimer: LabourMan exclusively provides services to employers.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@labourman.co.za or 021 556 1075 to speak to one of our consultants.

Author:

Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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