We have a saying, people fire themselves…but managers MUST manage.

First questions we ask are:

- When did you last discipline or performance counsel the person?

- What formal records do you have of these meetings?

- What did the employee have to say about it?

- Have you clarified what you expect from the employee?

Unfortunately in most of the cases, the responses are along these lines…well, we had a few serious chats about this, and he knows how I feel. We didn’t actually put it in writing but it’s clear.

Well, clear to who? Based on what? …and if we were to talk to the employee, there’s generally a very different story, or total amnesia has set in.

If this is the response you’d be giving right now, then you’d actually be facing the FIRST step towards addressing the matter, certainly not the final one!

In other cases, the employer puts the first steps in place, with a comment that should it happen again, further action will be taken, but that action isn’t taken and so the months go by. By leaving the situation the employer is actually condoning the behaviour and the message is that it’s not that serious or important enough to take action.

Our legal system requires that we follow systematic steps i.e. procedural requirements in both performance and disciplinary matters. Be systematic in your approach, document ALL meetings and retain the emails and other correspondence; and follow up timeously when things aren’t at the required standard.

We regularly receive calls where managers explain that they’ve had numerous meetings with a staff member, either on performance or disciplinary issues, but these haven’t been reduced to writing. Now it’s crunch time and they want to take serious action - some even want dismissal.

Some say - “we had many discussions and at the last one, we agreed that…”

…well, I’ve watched many discussion like that. The manager often does all the talking, the employee is either shell-shocked or doesn’t feel it would be worth responding. Some employees aren’t assertive enough to respond, and some are actually guilty but don’t want to admit it. But there certainly isn’t agreement.

Amnesia is a very real condition, even these days! Managers and employees often choose to forget facts when it suits them.

So, please reduce important conversations to writing. Often it is useful to pre-empt a discussion by setting down the 3 or 4 pertinent points you wish to make, then work through them with the other person, noting their side of the story. Summarise with decisions made or actions that need to be taken. Make two copies and ask the other party to sign for it. eMail is also great for this - ask the recipient to confirm receipt.

If the other party refuses to sign, chances are that they are not in agreement! That’s a fair warning bell, so get to the bottom of the matter - don’t just leave it. The act of signing is crunch time.

People will tell you that verbal agreements stand, but do yourself a favour, save some pain, get it in writing!

The employer must give due consideration to the reasons given and then decide.

Dismissal is one option.

Perhaps there is another position in the company where the employee is capable of meeting standard. It could be offered to the employee at the lower salary. It is important that the employee is given this option in writing and that the requirements and salary package of the lesser position are well set out. The employee must either accept or reject this demotion in writing.

Please always reduce important matters like this to writing. It never fails to amaze us how employers go to all the trouble of meeting on critical matters with staff but don’t set out important decisions or agreements clearly in writing. People often agree in meetings about things, but change their minds when it’s time to sign! Signing is often the real litmus test of whether there is a sincere agreement/clear understanding, or not.

It is important to have the same people at the follow up meeting as were at the first meeting i.e. the employee, employee representative, line manager or Head of Department and a good minute-taker.

This meeting is the opportunity for all parties to feedback on what actions have been taken since the first meeting and what progress has been made. If performance has improved to the required standard, the only step required may be to establish a further review date to ensure that the standard is being maintained. If, however, progress has not been made, the meeting must establish:

• the reasons why (both employer and employee)
• what additional assistance the employer can offer
• what actions the employee will take to achieve the required standards
• a reasonable time by which these standards must be reached

Once again the content of the meeting should be noted and the employee informed in writing that this is the final opportunity to improve, to meet and maintain the performance standards required.

This naturally assumes that the employer has done what they promised to do! It’s imperative that the employer takes these matters very seriously so as not to jeopardise the employee’s future or the company.

The next step is usually the final step….but more about that later!

Notify the employee in writing of the counseling session. Explain which standards are not being met, and the skills, requirements and standards that are expected. Detail the gap between the employee’s standard and that which is required. Request that the employee considers reasons why s/he feels the standard is not being met to discuss at the performance meeting. Advise of a date/time/venue for the meeting and also that the employee may be assisted by a work colleague. In the letter, explain that this is not a disciplinary hearing but a meeting to discuss factors contributing to the failure of the employee to meet standards.

Give the employee sufficient time to prepare (2 to 3 days is usually sufficient).

At the meeting, the relevant parties must be present. Usually this includes the employee, the employee’s representative, the line manager or head of department and a person to take comprehensive notes.

The goals of this meeting are to:

1. Establish what assistance (training, mentoring or instruction) the Company can offer the employee;

2. Establish what actions the employee will take to remedy the situation

3. Specify reasonable dates by which time the employee can be expected to improve and be re-assessed

4. Set a date for the next meeting

Give this detail to the employee in writing.

If you’ve been hesitating about performance managing staff, get started…we’ll explain more about what to do next in our follow up posts

It would be worth your while to have these in place.

s189 of the Labour Relations Act requires the employer to issue a written notice inviting the other consulting party to consult with it and disclose in writing all relevant information, including, but not limited to-

(a) the reasons for the proposed dismissals;
(b) the alternatives that the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives;
(c) the number of employees likely to be affected and the job categories in which they are employed;
(d) the proposed method for selecting which employees to dismiss;
(e) the time when, or the period during which, the dismissals are likely to take effect;
(f) the severance pay proposed;
(g) any assistance that the employer proposes to offer to the employees likely to be dismissed;
(h) the possibility of the future re-employment of the employees who are dismissed;
(i) the number of employees employed by the employer; and
(j) the number of employees that the employer has dismissed for reasons based on its operation requirements in the preceding 12 months

s189 covers more than this, but I always suggest that our clients answer these questions for themselves first, to establish in their own minds why they may be considering retrenchments, and the possible impact.

I have been involved in many retrenchment processes in my career, the best of which have been handled by management with very sincere reasons for doing so, open minds to considering alternatives which may save jobs and a thoroughly ethical approach. The processes that are the worst, falter on grounds of manipulation - using retrenchment as a basis to get rid of non-performers.

Ask yourself - do you have a performance culture in your workplace? Are you sure that the reasons you believe are valid in retrenching will render the results you are looking for?

A man I hold in high esteem once said “you accelerate out of corners”. Perhaps you need to review the best method to turn your business around. It may not be retrenchments.

SITA was contracted by the SA National Defence Force (SANDF) to provide IT services. They wanted to employ an ex-SANDF employee (let’s call him X) on contract, but could not because X had been given a severance package by the SANDF on condition that he would not be employed in future by the SANDF, or any of its service providers. To get around this, SITA and the SANDF agreed that X would be employed by a CC which, in turn, would render services to the SANDF.

As inevitably happens in cases like this, the hand that feeds gets bitten.

The SANDF terminated SITA’s contract, and SITA in turn terminated its relationship with the CC. X claimed that he was, in reality, an employee of SITA, and that they had unfairly dismissed him. The court agreed, saying that if one had regard to the substance of the relationship rather than its form, it was clear that SITA was X’s employer: SITA exercised supervision and control over X, whilst X was an integral part of SITA’s organization, and was economically dependent on it. These were all the hallmarks of employment.

SITA had to pay compensation to X, and quite a lot of it!

There are also tax consequences if the person is found to be your employee. So, you could save yourself a lot of trouble, and money, by checking with your labor advisers before you engage an employee via a CC.

Have you?

All employers who employ one or more workers in connection with their business are required to register with the Compensation Fund.

Chapter 9 of the Compensation for Occupational Injuries and Diseases Act, 1993 or "COIDA" refers to the obligations of employers. It reads:
80. (1) An employer carrying on business in the Republic shall within the prescribed period and in the prescribed manner register with the commissioner, and shall furnish the commissioner with the prescribed particulars of his business, and shall within a period determined by the commissioner furnish such additional particulars as the commissioner may require. (2) The particulars referred to in subsection (1) shall be furnished separately in respect of each business carried on by the employer.

Complete a Form COID W.As.2 , include a copy of the registration certificate for a company or closed corporation; or ID document, if a sole owner of a business, and mail it to
PO Box 955, Pretoria, 0001 (we’d suggest by registered mail). Call the Compensation Fund on 0860 105 350 if you have queries.

So, even if you think your workers are only likely to break a nail, or squint at a computer screen, please realise your obligation as an employer.

The recent decision in Discovery Health Limited v Lanzetta & Others JR 2877/06 dated 28 March 2008 shows these assumptions to have been mistaken. Discovery had dismissed one of its employees, an Argentinian national (`Lanzetta’), when it discovered that he did not have a work permit. When he challenged the dismissal in the CCMA, Discovery objected on the basis that he was not an employee. It applied the reasoning set out above. The Commissioner ruled that Lanzetta was, indeed, an employee and Discovery took this decision to the Labour Appeal Court (LAC)

Drawing on the Immigration Act, the LRA and the Constitution, the LAC held that a contract of employment is not invalid simply because the employee does not have a work permit. Whilst it may be an offence to employ someone who does not have a work permit, it is not an offence (under the Immigration Act) to accept employment without a work permit. The contract remains valid until terminated by the employer.

In any event, the Court said, a person could, on a proper application of the definition of employee in the LRA, be an employee even in the absence of a valid contract of employment, so long as the person worked for another and received remuneration. Lanzetta did both, and was therefore an employee.

This case carries a warning for all employers: foreign nationals enjoy the same labour rights as South African, and employers dismiss them unfairly at their peril.