From this basic division we can work out that dismissal due to incapacity refers to two different and very broad situations.

Firstly it applies to a situation where an employee is not able to achieve and or maintain an appropriate standard of work. In this situation an employer may dismiss the employee for not maintaining the required standard of work.

The right of the employer to dismiss the employee in this situation derives from the recognised right of the employer to demand a certain standard of work form his employees. Dismissal in this situation would fall under the category “ Dismissal due to poor work performance”. However we shall see that the right to dismiss for poor work performance is subject to various qualifications.

Secondly a dismissal due to incapacity refers to a situation where an employee is not able to maintain the required standard of work as a result of an injury, a disability or ill health. This differs from the first category in that the failure to maintain a required standard of work is not a result of a lack of experience, skill or intelligence, but rather due to a physical incapacity. In this article we shall look at the guidelines provided by the Labour Relations Act in respect of incapacity due to poor work performance.

As mentioned above, while the employer cannot be expected to continue with an employment relationship when the employee cannot perform according to the employers expected standard of work, the employers right to dismiss on the basis of incapacity is subject to substantive and procedural constraints. As in the case of misconduct the Labour Relations Act provides specific guidelines relating to both when and how an employee can be dismissed due to incapacity. We shall now look at these guidelines.

PROBATIONARY EMPLOYEES
Item 8(1) of schedule 8 states that : when appropriate , an employer should give an employee whatever evaluation , instruction, training, guidance or counseling the employee requires to render satisfactory service. Dismissal during the probationary period should be preceded by an opportunity for the employee to state a case in response and to be assisted by a trade union representative or fellow employee. This means that before dismissing a probationary employee for poor work performance the employer may be required to provide evaluation, instruction, training etc. However, the employer must give the employee a fair hearing prior to dismissal.

NON PROBATIONARY EMPLOYEES
Item 2 to 4 of schedule 8 regulates dismissal due to poor work performance with respect to permanent employees. As regards substantive elements of dismissal for poor work performance (that is to say when there is sufficient reason to dismiss) the following guidelines can be distilled from the Act. According to the Act the following four questions have to be answered in the affirmative in order for there to be sufficient reason to dismiss.

These guidelines are easy to state but are hard to apply. Therefor let us look at an example in order to understand how these guidelines might apply to a real situation.

Let’s assume that you employ Sarah, a domestic worker. During the first few months of employment everything runs smoothly. However, you begin to discover that the tasks that have been set are not being performed properly. For instance, the house is not cleaned in a satisfactory manner and she has burnt clothes whilst ironing. Can you dismiss her fairly, for poor performance? Firstly she has failed to maintain the required standard of performance.

Secondly we must ask whether she was aware of this or could be expected to be aware of this performance standard. This question is often difficult to answer. However, one can argue that in a case like this that a domestic, because of the very nature of her job, would be expected to know that she should maintain an acceptable level of cleanliness in terms of house work and competence while ironing.

Thirdly, one must consider whether you have given her a reasonable opportunity to improve. This requirement implies that you must have at least had a discussion regarding her failure to maintain the required work standard before dismissal becomes an option. Discussion of this nature may also obviate the need to determine whether she in fact knew or could be expected to know that she had in fact breached a work standard.

In addition to this discussion one must give their employee an opportunity to improve. Thus if Sarah had been dismissed summarily, the dismissal would have been substantively unfair. Lastly, one must determine whether dismissal was the appropriate sanction for the breach of the required standard of work. In most cases there must have been an accumulation of factors to indicate poor work performance.

In this case if Sarah’s poor work performance had been ongoing, dismissal may be warranted. However, a single occurrence of the type of work performance discussed above, would probably not justify dismissal. Not withstanding this, it is clear that in some circumstances, a single poor performance may justify dismissal. One must also bear in mind that the Labour Relations Act makes it clear that dismissal is the most severe form of discipline and must be seen as a last resort.

Having discussed substantive aspects of poor performance we shall now briefly discuss the procedural requirements. There are basically three procedural requirements which must be met in cases of dismissal for poor performance.

These procedures, as in the case of misconduct must be strictly followed or otherwise the employer must face a claim for unfair dismissal. For the most part the meaning of these procedures is self evident. However when it comes to evaluation and training things are a little more ambiguous. For one thing when we talk of evaluation, are we referring to a subjective assessment or an objective one? The case law seems to suggest that in determining whether or not the employee had breached a standard of performance the employer must make a reasonable and objective assessment and it is only where the employers value judgement concerning the employees performance is reasonable and fair that the court will uphold the employers decision to dismiss.

It is clear that while the employer is entitled to insist upon a certain level of performance from their employees that their right to dismiss for poor performance is severely constrained by the Labour Relations Act. No longer can an employer hire someone and finding them unable to do the job simply dismiss them.

This presents major problems for the employer. As is often the case when an employer initially employs someone, that due to either a misjudgement on the part of the employer or a failure to disclose on the part of the employee, the employer thinks that they have the right person for the job but shortly thereafter finds that the person they have employed is not suitable for the job . However as mentioned above the employer cannot simply dismiss the employee and this places major constraints on the employers business.

One way around this is to place a new employee on a one month fixed term contract. At the end of that month, should the employer be satisfied with the employees performance they can simply offer them permanent employment. On the other hand, should the employee not live up to the employers expectations, the contract simply terminates and the employment relationship ends without having to dismiss the employee.