By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za
South Africa’s labour laws effectively make it obligatory to set achievable performance standards in circumstances where the employer needs to take action against a poor performer. Where an employee has been fired for poor performance, the employer will, at the CCMA, have a heavy onus to prove that:
- The performance standard was realistically achievable
- The employee was given sufficient opportunity, guidance and wherewithal to achieve the standard
- It was the employee’s fault that he/she failed to achieve the standard
- The employer understood what he had been charged with.
In UPSWU obo Mogodi vs Ikageng Cleaning Services (2007, 10 BALR 959) the employee was dismissed for poor work performance. However, the charges against the employee were very vague and were brought for purposes of making a scapegoat of the employee. Therefore, the employee was unable to prepare a proper defence and the employer failed to convince the arbitrator of her guilt. The employer was ordered to pay the employee 12 months’ remuneration in compensation.
However, it is not sufficient to prove that the work performance merited dismissal and that the employee had been given an opportunity to defend himself/herself. The law also requires the employer to be able to prove that the employee had known what the required performance standard was.
In the case of Pule vs Health Professionals Council of SA (Lex Info 20 October 2025. Labour Court case number LS 465/2019) The employee was dismissed for poor performance. The employer invoked a clause in his employment contract that allowed it to terminate his employment without notice if his performance was particularly poor. However, the employer had failed in its duty to present the employee with Key Result Areas specifying the nature and level of performance required. The employee was unable to perform to the employer’s satisfaction because he had not been informed of the employer’s required performance standards. The Court therefore found that the employer could not rely on the summary dismissal clause in the contract and ordered the employer to pay the employee R 216 139.30 in notice pay.
In the light of the above findings employers should not dismiss under-performers without having a solid understanding of the legal requirements for such dismissals.
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