The Training Folder
“Let's start at the very beginning, A very good place to start.”( Sound of music).
Primary objective of all labour law posts I will make:
You must be able to go to the CMMA or Labour court with a bundle of documents and prove that the dismissal of your staff member was both substantively and procedurally fair.
Learning outcome: Your internal HR/labour law function:To get all your internal processes in place
1. Proof of training is important especially where the dismissal is for poor work performance or where an employee is dismissed after a probationary period;
2. It doesn’t help your case if you do dismiss an employee for poor work performance or dismiss an employee for not performing well after probation if all you have is your own word that proper training and induction was conducted. Yes, in terms of the law of evidence, oral evident is extremely important, but when you have documentary evidence to support your cause, you can state your case much better;
3. Section 8(2) of Schedule 8 of the Labour Relations Act provides inter alia,
“ (2) After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has-
(a) given the employee appropriate evaluation, instruction, training, guidance or counselling; and
(b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.
(3) The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.”
In practice, your signed code of conduct attendance register, your training folder(attached here) will prove to be beneficial!
4. Section 9 of Schedule 8 of the Labour Relations Act provides:
“Any person determining whether a dismissal for poor work performance is unfair should consider –
(a) whether or not the employee failed to meet a performance standard; and
(b) if the employee did not meet a required performance standard whether or not-
(i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;
(ii) the employee was given a fair opportunity to meet the required performance standard; and
(iii) dismissal was an appropriate sanction for not meeting the required performance standard
5. I am just going to focus section 9(b)(1) “the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;”
6. A common excuse for an employee not performing well in terms of work performance is , “ I didn’t know”, so my question to you is this, how do you now prove that the employee did indeed know?
7. Can you now see where the training folder comes in?