Before you terminate a non-performing employee, here is what you need to know

Contrary to popular belief, firing a non-performing employee is stressful for all parties involved, not just the employee being fired. Before you send them packing, you need to ensure you’re taking the right steps to fire your employee. Get it wrong and you could cause an uncomfortable situation for both you and your employee, or worse still, legal issues that could have a major effect on the business. So before you call them into your office and give them the bad news, here is what you need to know.

What does the law say?

The Labour Relations Act 66 of 1995 (LRA) requires that the termination of employment must be fair (which requires the employer to prove that there is a fair reason for the termination and to follow a fair termination procedure).

What would constitute fair procedure before terminating an employee?

• You need to inform your employee ahead of time if you think that you need to let them go. It’s your responsibility as an employer to let them know that you feel they are underperforming.
• Highlight the fact that they have been underperforming and assert the consequences in the form of a warning, make sure you reiterate the consequences that may result should they continue to perform poorly in the future.
• If after all the meetings and the warnings your employee still doesn’t deliver, it’s time to have “the talk”. In this final meeting, have someone from HR or another employee other than yourself to sit in on the meeting and explain to the employee that you have come to a conclusion and that it’s irreversible.
• Talk to your employee about important matters such as their right to take the matter to the CCMA if they feel that the dismissal was not fair, the pension fund benefit, salary etc.

 Why must you follow this long process, you’re the employer and you can do as you please, right?

Wrong! Sooner or later the labor law catches up with employers who fail to follow proper procedure. Section 188 of the LRA places the onus of proving that the dismissal was procedurally and substantively correct on the employer. The Labor Courts and the CCMA are intolerant of employers who cannot justify their dismissal. This could prove to be a very expensive exercise. Ask a legal professional or your legal insurance provider to assist you with drafting of a disciplinary and/or termination policy for your business.

Tips:

• Clearly set out the required standard of performance from the onset.
• Put the right resources in place to enable the employee to do their job as required
• If the failure by an employee to meet a performance standard is for reasons beyond the employee’s control, dismissal would not be justified.
• Create a paper trail of all communications to the employee about the fact that they are under performing