INCAPACITY CODE AND PROCEDURES FOR POOR WORK PERFORMANCE
| 1. | Codes, rules and standards. |
| (1) | The Code of Good Practice contained in Schedule 8 to the Labour Relations Act, 1995 (Act No. 66 of 1995), insofar as it relates to incapacity, constitutes part of this Code and Procedures, in respect of poor work performance. |
| (2) | In applying this Code and Procedures, the relevant employer must assess the incapacity of an educator by considering— |
| (a) | the extent to which the incapacity impacts on the work of the Department of Basic Education or provincial Department of Basic Education, or the public school, public further education and training institution or public adult learning centre; |
| (b) | the extent to which the educator fails to meet the required performance standards as contemplated in item 2 (2); |
| (c) | the extent to which the educator lacks the necessary skills to perform in accordance with the educator’s job description; |
| (d) | the nature of the educator’s work and responsibilities; and |
| (e) | the circumstances of the educator. |
| 2. | Procedure in respect of poor performance. |
| (1) | If the employer is of the view that an educator, whether on probation or a permanent staff member, is not performing in accordance with the job that the educator has been employed to do, the employer must— |
| (a) | give written reasons to the educator why it is necessary to initiate the procedure in respect of poor performance; and |
| (b) | after serving the written reasons referred to in paragraph (a), meet with— |
| (ii) | the educator and the educator’s trade union representative or a fellow employee, |
if the educator so chooses.
| (2) | Despite section 4 of this Act, the performance of educators must be evaluated according to performance standards which may be prescribed by the Minister. |
[Subitem (2) substituted by section 12 of Act No. 50 of 2002]
| (3) | In the meeting referred to in item 2(1)(b), the employer must— |
| (a) | explain the requirements, grade, skills and nature of the job; |
| (b) | evaluate the educator’s performance in relation to the job; |
| (c) | indicate the perceived poor performance; and |
| (d) | hear the educator or, if the educator agrees, the educator’s trade union representative or a fellow employee on— |
| (i) | whether or not the educator has performed in accordance with the requirements of the job; or |
| (ii) | reasons why the educator has not performed in accordance with the requirements of the job. |
| (4) | After hearing the educator, his or her trade union representative or the educator’s fellow employee, the employer must, if necessary, develop and initiate a formal programme of counselling and training to enable the educator to reach the required standard of performance, which must include— |
| (a) | assessing the time that it would take for the educator to overcome the poor work performance; |
| (b) | on the basis of the assessment referred to in paragraph (a), the establishment of realistic time frames within which the employer will expect the educator to meet the required performance standards; and |
| (c) | the identification and provision of appropriate training. |
(5)
| (a) | If the educator fails or refuses to follow a formal programme of counselling and training as contemplated in subitem (4), the employer may initiate disciplinary proceedings against the educator for misconduct as contemplated in section 18. |
| (b) | If the educator, after being subjected to a formal programme of counselling and training as contemplated in subitem (4), fails to meet the required performance standard for the post, the employer, after consulting the educator, may— |
| (i) | provide further training to the educator; |
| (ii) | provide counselling to the educator; |
| (iii) | transfer the educator; |
| (iv) | demote the educator; or |
| (v) | terminate the employment of the educator. |
(6)
| (a) | Before transferring or demoting an educator or terminating his or her services for poor performance, the employer must convene an inquiry in order to give the educator the opportunity to make representations in response to the allegations against him or her, which shall include the right to— |
| (i) | call, examine and cross-examine witnesses; |
| (ii) | bring all relevant documentation to the attention of the person presiding over the inquiry, and have access to documents produced in evidence by the employer; |
| (iii) | be represented at the proceedings by a co-employee or trade union representative; |
| (iv) | have an interpreter present if the educator so requires; |
| (v) | lead all relevant evidence, including evidence in mitigation of the sanction, if necessary. |
| (b) | The provisions of items 5, 7, 8 and 9 of Schedule 2 apply to these inquiries, read with the changes required by the context. |
(7)
| (a) | The person appointed by the employer to conduct procedures referred to in subitems (1) to (4), must be an employee on a higher post level than the educator concerned, and must as far as practically possible be his or her direct supervisor or the immediate superior of such supervisor. |
| (b) | If the direct supervisor or the immediate superior of such supervisor of the educator is the cause for the procedures referred to in subitems (1) to (4), the employer must appoint a person within the Department of Basic Education or the provincial Department of Basic Education, as the case may be, who is on the same level as the supervisor or the immediate superior of such supervisor. |
INCAPACITY CODE AND PROCEDURES IN RESPECT OF ILL HEALTH OR INJURY
| 3. | Procedures in respect of ill health or injury. |
| (1) | If the employer is of the view that an educator is not performing in accordance with the post requirements that the educator has been employed to perform, as a result of poor health or injury, or an educator applies for a discharge from service on account of continuous ill health or injury, the employer must investigate the extent of the ill health or injury. |
| (2) | In conducting the investigation the employer must give the educator, or the trade union representative of the educator or fellow employee, the opportunity to state the case of the educator and to be heard on all the issues that the employer is investigating. |
| (a) | Subject to section 7 of the Employment Equity Act, 1998 (Act No. 55 of 1998), the employer must appoint at least one registered medical practitioner to examine the educator at the State’s expense and to report on the educator’s state of health. |
| (b) | An educator is entitled to nominate any other registered medical practitioner of his or her choice at the educator’s own expense to report on the educator’s state of health. |
| (c) | The record of any medical examination performed in terms of this Act must be kept confidential and may be made available only— |
| (i) | in accordance with the ethics of medical practice; |
| (ii) | if required by law or court order; or |
| (iii) | if required by the employer to determine the extent to which the educator is able to perform in accordance with the job requirements. |
(d)
| (i) | The medical practitioner contemplated in paragraph (a) must, on completion of the medical examination, provide the employer with a report on the nature and extent of the educator’s ill health or injury and whether it is temporary or permanent, and the expected period of the educator’s incapacity. |
| (ii) | The medical practitioner contemplated in paragraph (b) may also submit a report if the educator is dissatisfied with a report contemplated in paragraph (a). |
| (4) | Based on the medical reports the employer must determine whether or not the nature of the educator’s ill health or injury is of a temporary or permanent nature and the period of time that the educator is likely to be absent from work. |
| (5) | After the investigation of the extent of the educator’s ill health or injury, the employer must provide the educator with a written report setting out the results or findings of the investigation. |
| (6) | If the educator’s ill health or injury is of a permanent nature the employer must investigate the possibility of— |
| (a) | securing alternative employment for the educator; |
| (b) | adapting the duties or work circumstances of the educator to accommodate the educator’s ill health or injury; or |
| (c) | consider the termination of the educator’s service with effect from a date determined by the employer. |
| (7) | If an educator refuses or fails to be subjected to an examination contemplated in subitem (3) when requested to do so by the employer, the employer may initiate disciplinary proceedings against the educator for misconduct as contemplated in section 18. |
(8)
| (a) | Before acting in accordance with subitem (6), the employer must convene an inquiry in order to give the educator the opportunity to make representations in response to the allegations against him or her, which shall include the right to— |
| (i) | call, examine and cross-examine witnesses; |
| (ii) | bring all relevant documentation to the attention of the person presiding over the inquiry, and have access to documents produced in evidence by the employer; |
| (iii) | be represented at the proceedings by a co-employee or trade union representative; |
| (iv) | have an interpreter present if the educator so requires; |
| (v) | lead all relevant evidence, including evidence in mitigation of sanction, if necessary. |
| (b) | The provisions of items 5, 7, 8 and 9 of Schedule 2 apply to these inquiries, read with the changes required by the context. |
| (9) | If the educator’s ill health is as a result of alcohol or drug abuse, the employer may— |
| (b) | encourage the educator to attend rehabilitation; |
| (c) | recommend a formal rehabilitation programme which the educator will be expected to follow at the cost of the employee; or |
| (d) | terminate the employment of the educator, if the behavior is repetitive. |
| (10) | The employer must give the educator or the educator’s representative a written report and consult again with the educator if the educator fails to— |
| (a) | follow the formal rehabilitation programme; |
| (b) | attend rehabilitation; or |
| (c) | address the problem of alcohol or drug abuse. |
| (11) | After consulting with the educator as contemplated in subitem (10) the employer may initiate disciplinary proceedings against the educator for misconduct as contemplated in section 18. |
