Target the bad apples first, says labour law expert Jonathan Goldberg

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Speaking at a recent Beyond HR conference, Jonathan shed light on how organisations could do better with regard to discipline. 

Labour law expert and CEO at Global Business Solutions Jonathan Golberg believes that organisations could save themselves a lot of time and money by handling dismissals more effectively. Speaking at a recent ‘Beyond HR’ conference, which was hosted by pan-African HR consultancy Emergence Growth, he said that the world of work was entering unchartered waters whereby nearly every large organisation in virtually every industry needed to reduce its headcount in order to remain competitive. 

"I haven't seen consolidation and restructuring taking place at this rate for the last ten years. I see it wherever I go and maybe, given the fourth industrial revolution, that's the new normal. Perhaps the impact of digitisation and automation is that we can expect to see a continual trend of restructuring over the next 10 years," he said.  

However, instead of implementing widespread restructuring programmes, which can be costly, he suggested that companies could focus on employees that are hurting the business as the first port of call.  This should be at all levels.

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Performance-related dismissal

“Every single day, managers do not effectively deal with poor-performing employees who cannot do their jobs either because they are incompetent or incapable as a result of ill health or other life circumstances,” he said, adding that there are also those who are poor performing simply because they have lost interest and are dragging their feet and these people have to be dealt with if the organisation is to move forward.  This includes managers.

To a large extent, that adds to the restructuring problem. The inability to manage performance creates inefficiencies that, in the long term, increase the need to restructure an entire organisation. 

If these are not dealt with properly, they end up in a mess like the Damelin v Solidarity obo Parkinson case, where the employer was forced to reinstate a poor-performing employee, simply because they handled the dismissal incorrectly.

Damelin v Solidarity obo Parkinson case

A general manager was dismissed for poor work performance due to his failure to reach his sales targets, but there was a difference of opinion between the sales director and employee around the target number of students in the area upon which sales targets were set. The employee felt that the unrealistic numbers gave rise to unrealistic targets. Nevertheless, the employee was warned on several occasions that if he failed to meet his targets that he would be dismissed.

The employee did not meet the target and, even though other campuses also did not meet the required target for their areas, the Commissioner found that the employee had been given more than a period of six months to improve his performance and the dismissal was found to be fair.

On review, the employer confirmed that the matter was dealt with by way of misconduct and not poor work performance and the court reinstated the employee and held that the employer could not “willy-nilly” deviate from its own policy. The court held that the period of some 27 days within which to achieve an amended target was either not sufficient time or that the target was unachievable. 

Jonathan said it was absolutely imperative for organisations to be certain of what type of case they are dealing with, whether it is misconduct or incapacity for poor work performance. Once the nature of the matter is correctly identified, it is then possible to follow the applicable process.

Said Jonathan: "Labour law is simple. If everyone went back to their workplaces and instituted one rule, like strict time-keeping policy, for example, 30 per cent of the workforce could be gone within a month's time. No retrenchment, no restructuring. You simply give them a verbal warning, a written warning, final warning and then a dismissal. But the company must be so strict about the policy that even the CEO and senior management are not exempt…Because, if you can't get time-keeping right, you can't think about 360-degree performance management. You have got to get the basics right." 

Monitor employees' social media

Social Media is another cause for concern, which Jonathan thinks too few organisations are taking as seriously as they should, because the amount of damage that an employee can do to the reputation of an organisation is so significant that it’s an area that should be prioritised by HR departments. 

"There was a case where a group of activists in Australia came across a post from a Pretoria-based company employee who made derogatory comments about a religious group on his Facebook page," said Jonathan.

"The group in Australia threatened to boycott the company unless the company took action. One little post out of Pretoria and you could potentially have an international boycott of your product. It's absolutely ridiculous but that's the reality that we find ourselves in,"

He also referred to Hanniker v One and Only Cape Town, a case in which an employee was dismissed for posting a note on Facebook because the employer claimed the post brought the name of its hotel, and security manager, into disrepute. 

Even though employee argued inconsistency at the CCMA, claiming that their five "friends" who had responded to her message had not been disciplined, it was found that her argument on consistency was without merit. In the circumstances, the Commissioner found the dismissal to be fair. 

While there may well be reasons to restructure on a large scale, Jonathan holds the view that it, in the future, such requirements can be mitigated by ensuring that all the bad apples are removed from the organisation well in advance. That said, it is also imperative that organisations handle dismissals correctly from the onset so as to avoid further legal costs in the case of a legal challenge.

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