By Johan Botes
Keeping teams happy and productive is core to the strategy of all successful businesses. Rogue employees, who don’t prioritise the needs of the business can be harmful to the bottom line, and employers may lawfully and fairly show such employees the door.
South Africa boasts world-class constitutional law that enshrines numerous human rights. One of those is the right to fair labour practices contained in section 23. SA’s labour legislation unpacks the constitutional right to fair labour practices.
The Labour Relations Act, for instance, creates the statutory right to fair employer treatment in relation to labour practices and protection against unfair dismissal. Like other International Labour Organisation member countries, employers in SA need a valid reason to terminate the services of an employee, but they need not get permission from a regulator, bargaining council or tribunal before they do so. Employers also don’t have to automatically pay severance pay every time they dismiss an employee; the right to severance arises in the case of redundancies or reductions in the workforce.
SA employers may make the decision to terminate on their own, but they do so in the knowledge that our labour dispute resolution system permits the employee the right to have the dismissal reconsidered by the employment tribunal. Employees enjoy the right to a fair dismissal, which entails limitations on the cause for such dismissal and a fair preceding process before the dismissal.
Dismissal for misconduct is an approach to dealing with rogue employees. Misconduct entails the wrongful breach of workplace rules or standards. Intentional misconduct occurs when the employee intentionally breaks the rules, ignores instructions or fails to adhere to workplace standards.
Negligent misconduct takes place when a reasonable employee in the same position should have foreseen that they would fail to deliver work on time and that this would not be acceptable to an employer but did not take steps to prevent this.
Even where an employee does not purposely or intentionally fail to perform on standard, their breach could still be misconduct if it meets the test for negligence. Would a reasonable employee in the position of the wrongdoer have foreseen the possibility of harm and, having foreseen it, taken steps to prevent it? If so, the employee is negligent.
Negligence evidences a form of misconduct; it does not constitute poor performance. Such employees commit misconduct even where there is no evidence of intention, provided negligence can be proved. Misconduct, therefore, is either the intentional or negligent failure to perform in accordance with standard rules.
The process for addressing misconduct is a disciplinary one that results in a form of sanction, whether a verbal warning, a final written warning or dismissal. The essence of the workplace disciplinary process is the employer making it clear to the employee that their conduct is unacceptable, with a warning that it needs to improve or there will be graver repercussions. In serious cases, the message to the employee is that their conduct poses a risk to the business that they can’t risk repeating.
Managing performance, on the other hand, presupposes that the employee has no fault in the matter. The employee does not set out to do poorly; they lack the intention to underperform. Employers often mistake negligence in the performance of tasks for poor performance and choose to address this via performance counselling, rather than correctly identifying it as negligence, which should be addressed through the disciplinary process.
In respect of employee incapacity, we say it is not the employee’s fault that they are not performing; they are just unable or incapable of doing the work. However, an employer can expect an employee to be able to fulfil the functions of their appointed role. Where the employee is unable to do so, our law allows the employer to terminate the employee’s service.
Such a no-fault failure to perform is managed as a form of incapacity, and the employee should be guided to improve their capabilities to the required standard, with performance evaluated and fed back. If the employee fails to make the grade, dismissal becomes a viable option. An employee’s incapacity can lawfully and fairly result in the employee’s dismissal, notwithstanding the absence of intentional or negligent failure to perform.
Employers have a right to terminate an employment relationship that is not working. To do so effectively, they should take a wider view of the employee’s duties than what is stated in the code of conduct and have a plan on how to bring an unhealthy relationship to an end.
Dealing with rogue employees with compassion and respect might also assist in ensuring that they are able to happily move on as they close the door on the employment relationship.
* Johan Botes is a partner and head of employment at Baker McKenzie Johannesburg.
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