Tough Conversations

Problem employees aren’t just an economic drag on a business at a time when every cent saved counts.

They can also be disruptive, and affect attempts to improve workplace culture. But employers also know that South African labour laws are some of the strictest in the world, so what are the procedures for dealing with problem employees without seeing yourself hauled in front of the Commission for Conciliation, Mediation and Arbitration (CCMA)?

Dr Ilizanne Howard of Growth Link Integrated Solutions, a company that specialises in resolving organisational challenges in human resources and business procedures, believes that, more often than not, workplace conflicts are resolvable through internal processes rather than complicated legal ones. She says that having the “real” conversation, the truthful, tough and frank conversation which outlines the conflict, will aid in resolving it.

Bigger picture

Indeed, the issues are seldom just about the employee in question. In her experience, Howard says, it is often problem leaders that result in problem employees. Where leaders are closed to communication and dealing with matters, they are unlikely to be able to resolve workplace conflicts.

She explains: “In order to deal with a conflict, it is important to determine these four things: What happens when we talk about the conflict? Where does it come from? What are the foundational principles to deal with it? And what do we need to do to solve it? This needs to be a discussion between the leader and his/her subordinate, and each step needs to be addressed.

“By talking through these steps, you will determine how you deal with conflict in your environment, understand each other’s world view and motivations, take accountability, and be able to have an authentic, solutions-driven conversation.”

Howard believes that around 80% of problem employees can be guided to perform. That does, however, leave the 20% who require more direct intervention, such as a mediator or measures that could result in a dismissal. But every disciplinary process needs to start with this kind of conversation.

CCMA in stats

It may well be worth the added expense to hire a company that can walk you through these processes and help to train your leaders to become good conflict managers, before the worst case arrives.

By its own figures, the CCMA received 171 854 cases in 2014/15, of which 137 479 were deemed to be within its jurisdiction. Cases that made the news almost always involve large-scale cuts made by big firms, but DA Shadow Deputy Minister of Small Business Development, Henro Kruger, reckons that same 81% of cases actually involve small businesses.

Speaking to the Sunday Times on his appointment as director of the CCMA in March, Cameron Morajane said he is expecting his organisation’s case load to increase this year, thanks to a combination of more layoffs and stricter labour laws introduced in 2014. These amendments include limiting fixed-term contracts for temporary employees to three months, unless exceptional circumstances apply.

When it comes to extreme action that may result in a firing, the procedure for fair dismissal and procedure is outlined on the Code of Good Practice: Dismissal from the Labour Relations Act 66 of 1995 as amended, Schedule 8, available from the Department of Labour or CCMA’s websites. On reasons for fair dismissal, it says there are three grounds on which a termination of employment might be legitimate.

“These are: the conduct of the employee, the capacity of the employee, and the operational requirements of the employer’s business. Dismissal is automatically unfair if the reason for the dismissal is one that amounts to an infringement of the fundamental rights of employees and trade unions.”

Fair procedure is the manner in which the employer deals with the dismissal of the employee. The employer is required to conduct an investigation to determine if there are in fact grounds for dismissal. Based on these findings the employer is required to notify the employee of the allegations and provide him/her with the opportunity to respond. Once a decision is made in response to the inquiry, the employer is to provide the employee with written notification of the decision. Even if fair procedure is followed, the employee retains his/her right to refer the matter to a council or to the Commission.

When dealing with dismissal, one needs to consider if one is dealing with poor performance, which is related to the ability of the employee, or misconduct, which deals with the behaviour of the employee, as the remedies for dealing with them differ.

Misconduct typically results in severe disciplinary action, and often ends in dismissal. Poor performance, on the other hand, is usually a process that includes assessing the employee to determine what his/her shortcomings are, and looking for ways in which to upskill and train, in order to retain, him/her. Only if these measures aren’t successful is dismissal even considered.

Is the situation salvageable?

When considering disciplinary action, it is essential to identify whether the grievance is one of performance or misconduct. Here are the key questions to ask yourself…

Identifying poor performance

1. Is the quality acceptable?

2. Is the output sufficient?

3. Are company procedures being followed?

4. Does the employee expend sufficient effort?

5. Is it possible to train the employee to perform to expectations?

6. Will the employee be able to perform sufficiently at a lower level?

7. Is the employee merely disinterested and careless?

What is misconduct?

1. A negative socially unacceptable behaviour.

2. Violence.

3. Gross insubordination.

4. Abusive behaviour.

According to the CCMA’s latest annual report it saved 12 496 employees from retrenchment in 2014/2015. 70% of all cases heard were settled, including 59 268 through the speedy CON/ARB process.