Managing Performance through legislation

Presented by: Michelle Naidoo

The Legislative Framework CONSTITUTION

• Establishes the mandate to national, provincial and local government to govern with accountability

MUNICIPAL SYTEMS ACT

• Gives effect to the Constitutional mandate :Municipalities must implement performance management systems

GG No 22605 OF 2001 & GG No 29089 of 2006REGULATIONS

• Rules applicable to implement Performance Management generally and specific the rules applicable to Municipal Managers and Managers directly accountable to Municipal Managers

Local government : overview of Performance Management Process

Setting Key Performance indicators

• Measurable, relevant, objective and precise

Performance Review

• Identification of areas of concern

• Remedial measures

Disciplinary process

• Counselling

• Warnings

• Dismissal

Poor performance management map

Labour Relations Act: Dismissal

Misconduct • When an employee breaches a rule

Incapacity

Poor Work Performance/

Health

• When an employee fails to meet performance standards

OperationalRequirements

• Economic

• Structural

• Technological requirements

LRA Procedural requirements for PWP cases “ITEC”

Instructions

• Reasonable, Clear & Unambiguous

Training

• Relevant to Key Performance Objectives

Procedural requirements for PWP cases “ITEC”

Evaluation

• Objective

Coaching (Counselling)

• Meaningful engagement

Substantive requirements for PWP cases

Whether or not employee failed to meet a standard?

1If yes:

Is employee aware of standard?

Has the employee been given a fair opportunity to meet the standard?

2

Appropriateness of sanction

• Progressive discipline

• Each case to be assessed individually

Case LawIn ESKOM v Mokoena (1997), the Labour Appeal Court endorsed the view that:

an employer is entitled to set the standards it requires its employees to meet and the court will not intervene unless those standards are grossly unreasonable

It is also within the employer’s province to make the assessment whether or not those standards have been met and again the court will not interfere unless the assessment is grossly unreasonable

Case LawIn Duff v McGregor BFA (Pty) Ltd (2004), the CCMA held that: Even though one is alive to the need for ambitious targets to be set within a

sales environment, “it is implausible to suggest . . . that employers are able to set standards which are unreasonable.”

The commissioner noted that it was common cause that the applicant had failed to reach her revised target for several months.

Standards set by employers must be reasonable. The respondent had failedto prove that its targets were in fact attainable.

It had in fact revised its target once, and the impression was that the secondtarget was something of a “thumb suck”.

Given that the respondent had failed to prove that the sales target was reasonable, the applicant's dismissal was substantively unfair.

Case Law : PWP vs NegligenceIn Xstrata South Africa (Pty) Ltd (Lydenburg Alloy Works) v NUM & others (2016), the LAC:

“The approach and principles applicable to a dismissal based on poor workperformance differ in material respects from those applicable to a dismissal basedon misconduct.

Misconduct and poor work performance are distinct concepts requiring differentremedial procedures with different sanctions. Consequently, the relevant evidenceand arguments to be presented in each case are different. When an employee isdismissed for poor work performance, the Arbitrator must examine whether theemployee was trained to perform the functions that he or she was tasked to do;whether such training was adequate; and whether the employee may benefitfrom further training or counselling”

Case Law • “…negligence (misconduct) can overlap with incapacity/poor work

performance. The basis for the employee's culpability is not theact/omission itself, but rather the lack of care and/or diligence thataccompanied the act/omission. "Wilfulness" or "intent" is not arequirement for disciplinary action against employees for negligence -disciplinary action is taken against employees for negligence becauseemployees have a duty of care to their employer/co-workers. Considering asanction of dismissal in cases of negligence, the chairperson/arbitrator willdetermine the validity and reasonableness of the rule and the effect thereofif transgressed.”

Congregated and Allied Workers Union of South Africa obo Mokoena / Vaal Truck Inn CC [2013] JOL 29905 (MIBC)

Case Law“ …’Ordinary negligence is the failure to exercise reasonable

care…negligence describes conduct where there is:

(a) a failure to exercise reasonable care that a reasonable prudent person would have exercised in a similar situation

(b) carelessness amounting to a breach of duty’ …”

Congregated and Allied Workers Union of South Africa obo Mokoena / Vaal Truck Inn CC [2013] JOL 29905 (MIBC)

Case Law“…to qualify as gross negligence the conduct inquestion…must involve a departure from the standard ofthe reasonable person to such an extent that it mayproperly be categorised as extreme; it must demonstrate,where there is found to be conscious risk-taking, acomplete obtuseness of mind or, where there is noconscious risk-taking, a total failure to take care . . .”

Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas and another (2003) SCA

Management Checklist

1. Is the employee aware of the performance standard?

2. Has there been sufficient instruction, training evaluation, counselling/guidance given to the employee?

3. Has the employee been afforded reasonable time for improvement/reach the required performance standard?

The do’s & don'ts • Do critical objective assessment in appraisals √• Do apply relevant factors to key performance objectives for

ratings å Do ensure key performance objectives are reasonable,

capable of justification before an external forum, properly weighted and consistently applied √

• Do not record unknown or unsubstantiated facts ו Do not include subjective speculative comments as possible

reasons for poor work performance ×

Q&A Session

Thank you for your participation

“Leadership is lifting a person’s vision to high sights, the raising of a person’s performance to a higher standard, the building of a personality beyond it’s normal limitations” - Peter Drucker

“A leader takes people where they want to go, a great leader takes people where they don’t necessarily want to go, but ought to go” –

Rosalyn Carter