Last week, I deliberated on the concept of fairness and how this differs in the labour relations sense from unfair discrimination. This week, my missive is prompted by yet another Tweet by a very influential twitterer, lamenting about how difficult it is to dismiss people. This is such a common misperception and often repeated by lay-people, especially when they ask what I do. “Oh” they sigh, “I wish I could run my business without people”, followed quickly by, “you must be so busy!”.
Well yes, mostly, but also mostly to fix what people have done wrong in the firing department.
It is not difficult to dismiss people, you just have to know how to go about it. Doing it properly will not save you from a referral to the CCMA, but it will ensure that you can significantly raise your chances of winning your case if you have done it correctly. There is no guarantee against CCMA referrals – often people refer matters when they are unable to take responsibility for what happened to them. Of course, there are many deserving cases heard in the CCMA, but even these are often caused by lack of information and lack of proper process.
It never ceases to amaze me that businesses will go to great lengths to find out how to stay on the right side of the tax laws, will go through the property transactions with a fine toothcomb, will hire lawyers to draft lengthy partnership agreements, but care little to find out what it means to employ people in line with the legislation. When I lecture at a university, I was astounded to find out that any course in labour law is an elective. Unless you are lucky enough to be a beneficiary of an endless trust fund, we all at some stage are either employed, or employ people. Either of those relationships are better served with knowledge of what to do from a legal perspective. Those that fire with impunity, believing that since the employment relationship is a contract, a month’s notice suffices to call it a day, unfortunately fall foul of the constitutionally protected right to fairness. This will land you in the CCMA, with a punitive order for not following a proper process, even if you had a good reason to dismiss the employee concerned.
It is not difficult to dismiss someone. Some people have even told me that it is not possible to dismiss for mediocrity, believing that you must put up with shoddy work, because it is too difficult to “get rid” of this person. No-one need tolerate mediocrity and we can hold our employees to the highest possible standards of performance. Provided the standard is known to the employee or should have been known in the case of high-end employees (many a CEO has had to write their own job description), that any shortcomings have been conveyed to the employee and a period given to improve. The length of such period depends on the circumstances. On average, a month should suffice. You must go one step further – you must make sure that the employee has been told/taught/trained to do what you want them to do. Not how your competitor expects things to be done, but how you want the work to look. You should also ask yourself if this period for improvement will make any difference. If you can show that it will not, then you can dismiss after following a proper procedure (‘due process’ in some countries).
This process is always the same: Notification of short-comings and a two-way engagement on the reasons for under-performance. Here it is critical for the employee to be able to communicate their perspective – perhaps you did not delegate properly, perhaps they did not understand the brief properly, perhaps they are steeped in an ‘old’ way of doing things etc. If you accept this explanation, then a period to improve is appropriate, with an action plan of how the employee intends to improve. It is important to involve the employee in crafting this action plan, any plan in which the employee has had a hand, invites a greater psychological investment from the employee to make it happen.
Once you can show that you have ticked all the above boxes – A) is there a standard? B) has the standard been communicated to the employee, or should they have known it? C) has the employee been given a chance to improve? D) will a further period of time make any difference? and E) have you given guidance, assistance, support etc. Once you can show through a well-kept paper-trail that all of this has been done, you can dismiss, if the work is still not up to scratch. Some people mutter darkly that this is all time-consuming and too much trouble. I would argue the opposite. It is the bare minimum of what can be expected from anyone that manages people and not to do it, is ultimately more costly and time-consuming. When you have spent a day or two in the CCMA, trying to argue the unarguable, with a punitive order for a process not followed, you will come away convinced that the above process would have been worth it in the long run.
Dismissal for misconduct is even easier. Once again, you must show that there is a rule, which has been broken. If you follow basic process, A) Notification. B) Holding a hearing with both sides being heard and C) Base your outcome what happened in the hearing, you can dismiss if you show that there has been a breakdown in the trust relationship. All this information is freely available – not only in the FAQs on the Department of Employment and Labour website, but also on various platforms by excellent labour lawyers available on Google. Simply Google it!