RESTRUCTURING AND OPERATIONAL REQUIREMENTS

Throughout the years the MISA Legal Department have published numerous articles regarding performance, mostly however the correct procedure to be followed should you face a performance review or should you be dismissed for non-performance. Today we bring it in context with the operational requirements of a business. A good starting point might be to ask, what is operational requirements and why performance?

Operational Requirements

The Labour Relations Act 66 of 1995, section 213 defines operational requirements as “requirements based on the economic, technological, structural or similar needs of an employer…” It is clear that it is all about the needs of an employer.

That begs the question, what will motivate someone to open a business? Is it all about job creation? Is it about legacy? Or is it as simple as “to make money”! I can just imagine the different reactions to the questions and the critique that will follow. Be that as it may, when you cut to the chase, what remains is the employer’s need for revenue and to make a successful business. That then the reason for the high demand of performance.

Performance

All commission and incentive earners will know that the more you sell unit, hours, gross profit or second gross profit, the more you will earn. The Labour Court in ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman No and Others held that by asking two questions, the distinction between performance and misconduct will become clear, namely “Did the employee try but could not?” and “Could the employee do it, but did not?” An affirmative answer on the first question will indicate poor performance.

Operational Requirements and Performance

Now ask yourself the question: “Can I up my performance to save the business from closure, or do I need to reconsider my position within the business?”

As harsh as it may sound, the current economic climate during the COVID 19 pandemic, subsequent cold lockdown and systematic reopening, killed many businesses. Employers are embarking on national restructuring exercises to create/streamline their business to recover and to generate revenue. Performers will help businesses to pull themselves out of possible closure that might result in thousands of job losses.

A quick glance at the Code of Good Practice: Dismissals give a good understanding in terms of what is required from an employer, as well as what is required from an employee in terms of performance. Item 9 specifically alluded to failure to meet a performance standard; awareness of the performance standard; fair opportunity to meet the performance standard as well as the reasonableness of the standard.

Re-evaluate your position

Employers need employees who can generate revenue, who can sell and who are willing to pull up their sleeves! Be that person! Longer years of service cannot save you from possible dismissal as a result of restructuring, you need to bring your part!

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