You do have valid grounds to pursue unfair dismissal with the CCMA!Originally Posted by xBrightDiamondX
Firstly, there are only three grounds that an employer may dismiss an employee, namely, misconduct, incapacity and operational requirements.
1. In your case the employers grounds are incapacity, and in particular, poor work performance during probation;
2. Schedule 8(LRA) places a demand on employers to do certain things in practice, before a dismissal;
3. There must be sufficient training, guidance and counselling with a view to enable the employee to perform his duties satisfactorily during a probabtion period;
4. The employer must make it very clear to the employee on probation what the work performance standards are and where specifically the employee is not meeting these standards, for instance, if a data capturer, on probation, has the task of successfully capturing and processing 30 vehicle finance applications per day, and the employee only processes 15, there is a discrepancy between actual results and desired results. The employer must make this clear;
5. The employer must then assist the employee by training to meet this work performance standard;
6. The employer must then provide a date for review of work performance and measure the employees performance during this period
The relevant statutory provision is Schedule 8, article 8(1), which I include here:
Incapacity: Poor work performance
Probation
(1) (a) An employer may require a newly-hired employee to serve a period of probation before the appointment of the employee is confirmed.
(b) The purpose of probation is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment.
(c) Probation should not be used for purposes not contemplated by this Code to deprive employees of the status of permanent employment. For example, a practice of dismissing employees who complete their probation periods and replacing them with newly-hired employees, is not consistent with the purpose of probation and constitutes an unfair labour practice.
(d) The period of probation should be determined in advance and be of reasonable duration. The length of the probationary period should be determined with reference to the nature of the job and the time it takes to determine the employee’s suitability for continued employment.
(e) During the probationary period, the employee’s performance should be assessed. An employer should give an employee reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render a satisfactory service.
(f) If the employer determines that the employee’s performance is below standard, the employer should advise the employee of any aspects in which the employer considers the employee to be failing to meet the required performance standards. If the employer believes that the employee is incompetent, the employer should advise the employee of the respects in which the employee is not competent. The employer may either extend the probationary period or dismiss the employee after complying with subitems (g) or (h), as the case may be.
(g) The period of probation may only be extended for a reason that relates to the purpose of probation. The period of extension should not be disproportionate to the legitimate purpose that the employer seeks to achieve.
(h) An employer may only decide to dismiss an employee or extend the probationary period after the employer has invited the employee to make representations and has considered any representations made. A trade union representative or fellow employee may make the representations on behalf of the employee.
(i) If the employer decides to dismiss the employee or to extend the probationary period, the employer should advise the employee of his or her rights to refer the matter to a council having jurisdiction, or to the Commission.
(j) Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period.
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