Employer not absolved from assisting senior employees

Employees’ performance is often a matter that employers and employees battle with in the workplace. The parties often disagree on the validity of the targets set. The case below is a classic example of this.

In Damelin v Solidarity obo Parkinson (2017) (LAC) (Case No: JA48-17):

An employee, who was employed as a general manager, was dismissed for poor work performance as he did not reach his sales targets.

The employer and employee disagreed on the targets with the latter saying the targets were unrealistic. He was warned on several occasions that if he did not meet his targets he would be dismissed. The employee did not meet the targets and was consequently dismissed.

The commissioner found that the employee had been given more than six months to improve his performance. He had not communicated to the heads of the business that his targets were unattainable. As higher standards are expected of senior employees, the commissioner found that the dismissal was appropriate.

On review at the Labour Court, the employer confirmed that the matter was dealt with by misconduct and not poor work performance which was contrary to the finding of the Commission for Conciliation, Mediation and Arbitration. The court reinstated the employee and held that the employer may not “willy-nilly” deviate from its own policy and procedure in dealing with misconduct and incapacity.

The matter went on appeal to the Labour Appeal Court (LAC) where the court considered that although a senior employee is indeed expected to be able to assess whether he is performing according to standard, and does not need the degree of regulation or training that lower-skilled employees require to perform their duties, an employer is not freed from providing a senior employee with resources essential for him to achieve his targets.

The court held that the period of some 27 days within which to achieve an amended target was either not sufficient time or the target was unachievable. The LAC reinstated the employee.

The mistake made by the employer was not being clear as to whether they were dealing with misconduct or incapacity. These two procedures are very different in application and employers need to be aware of the differences.