# Regulatory Compliance Category > Labour Relations and Legislation Forum > [Question] Please tell me if I have a case - Poor work performance CCMA

## Deviiance

PLEASE HELP

I have been working as a sales representative for a manufacturing company from June 2015 and have hit a big speed bump. I have been working hard trying to make sales but unfortunately due to my head office taking their sweet time getting manufacturing quotes to me I have missed a lot of deadlines and the clients have not returned to me, making my job extremely difficult to do.

I have been placed on a poor work performance evaluation (I have not received target once this year of working for this company and no warnings or verbal warnings given before evaluation) after which the chairman decided that training would be the best way forward. The training was supposed to be done by 31 July 2016 and my first evaluation was supposed to be done 30 August. Due to this not being done they extended their training dates to 30 August and first evaluation to 30 September of which I need to reach at least 50% of my monthly target. 

Currently I am on 42.1% of the sales for the month of September.

The timeline of the occurrence.

06 July 2016  Poor Work Performance Evaluation conducted
11 July 2016  Evaluation feedback received from Chairman  1 week training needs to be provided by 31 July 2016 and evaluation as follows Aug  50%, Sept  70%, Oct  90% of monthly sales target will need to be met.
15 July 2016  I asked what the training procedure will be and I was told he is not sure we will have to wait for GM to come through to Cape Town next week. . My manager said due to him doing things completely different from other sales persons, regarding the sales training he can read up on the internet on different techniques and procedures and pass the information on.
18 July 2016  I followed up with HR and asking what procedure is for training
18 July 2016  I sent through technical training suggestions which I think might help to my direct manager and HR
27 July 2016  I was ambushed in meeting 7:45am when arriving for work. Was told by the GM that I was told to be in the meeting. My manager said he told me. I explained that I was not told about the meeting, just that my manager was referring to him having a meeting with Head office in the morning at 7am. My manager says he apologised to the GM after meeting and said that he might have explained it wrong about the meeting and whom was supposed to attend.
The GM went through figures and looked at the training notes I sent (15 July 2016) and I was told by my GM and the Director that this is all an excuse and they can tell me now the outcome was does not look good and that they have to leave for a meeting and I must use this time to think of what their outcome is.
Lunch break  
After lunch I was called into the boardroom and explained that they have spoken about the issue and feel a voluntary termination of contract will be the best option. They will offer me one month payment and we call it quits from all sides. I said that I will need to refer this to my legal advisers.
27 July 2016  5:02pm  - the Voluntary termination agreement was emailed to me.
(GM asked administration lady to keep petrol card from me until further notice, this was a new card being issued for fuel usage as of 1 August 2016)
28 July 2016  I sent an email asking to give them feedback by Monday 1 August as my legal team will need to respond to this.
28 July 2016  My manager explained in an email to me that the company will only be able to give me till COB 29/07/2016 to sign the document otherwise the evaluation will have to continue.
01 Aug 2016 - Emailed letter saying that I will not be accepting the voluntary termination of contract as this was seen as a direct way to dismiss me and ignore the findings of the evaluation and requested that they supply me with training.
04 Aug 2016  Petrol card still not received, I emailed to ask when I will be receiving my renewal of the petrol card, the admin lady handed it to me after the email and asked me to sign for receiving.
04 Aug 2016  My manager emailed and asked for calendar to be shared with him
05 Aug 2016  I Shared calendar and asked if my manager will use this to schedule my training  No response further from my manager
12 Aug 2016  My manager emailed and asked if I can schedule meetings for next week to use as training as he would shadow me and give me feedback after meetings. (I was in Stellenbosch at this time with a high end client). Arranged meetings as soon as I got back to Cape Town +- 3pm.
16 Aug 2016  Emailed my manager and asked if I can possibly shadow him when he goes to meetings to see what his sales strategies are  No response from him regarding this
17  19 Aug was used as training with clients
1.	1st client  Manager was not present
2.	2nd Client  Manager was not present  He went to meeting with one of his clients  I was informed about this meeting a few days prior.
3.	3rd Client  Manager was present  Was told that all information given was correct and the only thing he can see wrong was that I was not focusing on special manufacturing enough
4.	4th Client  Client postponed meeting
5.	5th Client  Manager was present  Feedback was that I need to be a bit more confident when talking to clients. He feels like I confuse myself although I have all the information
25 Aug 2016  Training was given to me by Manager. Answered the questions from my technical training document as requested. Was referred to ISO document a lot and was handed to me after training to remember what I signed for. The ISO documents have only been given to us once and then put into the admin lady office. I requested digital files as reference and was told that there is not real structure in the documents sent and they had to sort through them for days. Unfortunately they cannot send them to me.
25 Aug 2016  Manager asked SHEQ rep to validate the periods of Guarantee and Warranty as he was not sure
25 Aug 2016  Manager confirmed sheet sizes for machines from head of departments. No other specs given on machinery.
31 Aug 2016  Manager said he has not gotten to the documents for the ISO training as of yet and will give it to me 1 September to sign for completion of training
1 Sept 2016  Manager asked me to sign documents as they are done with the training as per ISO. Manager emailed copies to me.

I am afraid that I might end a few percentage short of my 50% target but I might still make it. If the company does decide to let me go due to me not reaching 50% of my monthly target will I have a case against them for unfair dismissal due at the CCMA?

----------


## Dave A

> I have been working as a sales representative for a manufacturing company from June 2015 and have hit a big speed bump. I have been working hard trying to make sales but unfortunately due to my head office taking their sweet time getting manufacturing quotes to me I have missed a lot of deadlines and the clients have not returned to me, making my job extremely difficult to do.


Have you raised this with management and did you raise it in the work performance evaluation?

----------


## Deviiance

> Have you raised this with management and did you raise it in the work performance evaluation?


Hi Dave

I have previously sent an email to the director explaining that I am struggling and that I was not sure why my sales are not coming through. They responded telephonically saying that I am on the right route and that sales in our industry takes time. No further effort was spent on me from there. I received brief training in the beginning of my employment and no further training was given after that until now with the evaluation.

As I said before the evaluation was the first interaction I have had regarding my sales being below performance level.

----------


## Deviiance

Sorry Dave, yes I did mention that my poor work performance is due to my head office not giving me the support needed in time to meet clients deadlines.

----------


## Deviiance

Can someone please assist me with this as it is almost my evaluation date.

----------


## Citizen X

Hi Deviiance


*Case Law to help you
*
1. In _Pernod Ricard SA (Pty) Ltd v CCMA_ (2011) 32 ILJ 1199 (LC) para 16 it was provided that not meeting performance targets was not sufficient to prove a case of poor work performance and that the employer should also take into consideration the underlying circumstances which will include the economic climate, the characteristics of the market area, whether there are proper support structures for you to meet targets as well as the business cycle.

2. In _White vs Medpro Pharmaceuticals (Pty) Ltd_ (2000, 10 BALR 1182): the employee by the name of White was dismissed for not meeting the required sales targets. The employer was adamant that reaching these sales targets was basically the employee’s main job. The arbitrator held that it was the employer’s task to prove that the performance targets that they set were consistently and fairly applied. The employer was unable to prove this, as a result the dismissal was found to be both procedurally and substantively unfair.

3. In _Robinson vs Sun Couriers_ (2003, 1 BALR 97) The commissioner actually blamed the respondent for the employee’s failure to meet performance targets. It was stated that even if performance targets are reasonable, the employer actually has a responsibility to help the employee reach these targets. 

4. In _Duff vs McGregor (Pty) Ltd_ (2004, 1 BALR 21)This was a matter of whether sales targets set were attainable and the arbitrator blamed the respondent for the applicant’s inability to reach targets. The arbitrator wanted the employer to prove that the sales targets were attainable. The employer was unable to prove this. The dismissal was found to be both substantively and procedurally unfair

5. In_ Palace Engineering (PTY) LTD and Thulani Ngcobo, Commissioner Shaam Govender N.O._ and_ Commissioner for Conciliation and Mediationi_ Case no: JA20/2012, the LAC looked at poor work performance and sales targets. The employee’s sales target was R100 million per annum. The court found that the employee was unable to meet this target because he didn’t have sufficient infrastructure and resources such as staff and also because the company itself failed to generate contracts, which the employee had no control over.
Have a look at this particular case here


*Legislation* 

1. Item 8(2)(a) of the Labour Relations Act 66 of 1995 says:

“8(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.*

(4)* In the process*, the employee should have the right to be heard and to be assisted by a trade union representative or a fellow employee.

2. Item 9(LRA) entitled “Guidelines in cases of dismissal for poor work performance,” states

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

----------

adrianh (23-Sep-16), Greig Whitton (23-Sep-16)

----------


## Deviiance

Thank you very much Vanash you are a great help.

Does this mean that I stand a chance at least and it is not a lost cause?

----------


## Dave A

> Does this mean that I stand a chance at least and it is not a lost cause?


As you might gather from the cases Vanash has reported, it's all in the details and not a simple issue to decide. 

Frankly, it seems your employer may be aware of these intricacies...

If I were you, I'd focus on doing my best to produce the results wanted, and make sure your activity is transparent. If they do dismiss you at some point, worry about whether you may have a case then.

(Because right now you're wasting energy that could be directed at producing sales results).

----------


## Citizen X

> Thank you very much Vanash you are a great help.
> 
> Does this mean that I stand a chance at least and it is not a lost cause?


 Based on the given scenario, in my opinion, you stand a chance. Procedurally it *seems* that the employer is already in default. Once performance evaluation for poor work performance begins, in terms of the law this is a *'process.'* There is a reason why I highlighted the word process! Item 8(4) of the LRA states as follows:

In the process, the employee should have the right to be heard and to be assisted by a trade union representative or a fellow employee. Whilst, you do state when they tried to get you to sign the ‘voluntary termination,’ you replied by stating that you will consult with your legal team first, you had the right to assistance by a trade union official or fellow employee from the outset.
All the case law will assist you.

----------


## Dave A

> Whilst, you do state when they tried to get you to sign the ‘voluntary termination,’


Eish! I'd forgotten about that. That would have been a slam dunk constructive dismissal finding at the CCMA, surely  :Stick Out Tongue: 
Maybe the employer is not so up to speed after all.

----------


## Citizen X

> I have been *working hard* trying to make sales but unfortunately *due to my head office taking their sweet time getting manufacturing quotes* to me I have missed a lot of deadlines and the clients have not returned to me, *making my job extremely difficult to do*


The_ Pernod Ricard SA_ case comes to mind here. The employer must make a sincere effort to give you the necessary support to meet your sales targets.

Your employer is either doing it sincerely or they doing it unscrupulously. It’s clear that they aware of item 8. It’s possible that they merely are trying to create a *façade* of procedural fairness. Fortunately, you are meticulous in keeping records. Continue to do so. Where there is a genuine lack of support and you questioned about performance targets in an email, mention the lack of support.

Dave is correct when he says that you should currently focus on meeting your sales targets.

----------


## sterne.law@gmail.com

I take it you used to make target?
You say, there is a speed bump and head office speed is a problem.
I must ask, how did you previously make target then?
Either, there is is a new process or, this inefficiency was always there, in which case the fall in sales rests on a different reason.

If there are other sales people, and they are making target, then the inefficiency role is greatly reduced. 
If the above is on target, then you need to ask yourself - why have my sales slipped? Some of those questions may be: -
- Perhaps you have had a personal crisis.
- Perhaps a new manager or team player has dented your morale
- Perhaps you lost a big sale because of inefficiency and are justifiably upset and demotivated

Often a poor work performance makes us defensive. In a similar manner, the company becomes offensive.
A genuine PWW should be a solution seeking process not a blame seeking process.

Both you and company must ask these questions of themselves - what can we do to improve the situation?

On the legal aspect - if you are showing signs of improvement then a company is hard pressed to abort the process and dismiss.

----------


## HR Solutions

> If I were you, I'd focus on doing my best to produce the results wanted, and make sure your activity is transparent. If they do dismiss you at some point, worry about whether you may have a case then.


I agree with this.  As much as the legal stuff for dismissal is right and also sometime not right - at the end of the day the company needs you to do sales.  Targets are in place for a reason ! Too many people sit back and try to blame other people or the company that has not sent them on a training course.  If I was you I would get out there and make it happen - try to go on some relevant course perhaps in your own time, read up about sales/management/targets etc etc etc - go back to work a new man and make things happen - your bosses will soon stand up and realise.  I have my own staff and you can clearly see those that want to make it work and happen and those that sit back waiting for it to happen.  I can tell you that I would pick the pro active ones way before the others.

Im not saying that this is you, but if you leave this company it could happen again - you can't always run the legal route because the company has done something wrong - it is also up to you to make it happen

----------


## Deviiance

> I take it you used to make target?
> You say, there is a speed bump and head office speed is a problem.
> I must ask, how did you previously make target then?
> Either, there is is a new process or, this inefficiency was always there, in which case the fall in sales rests on a different reason.
> 
> If there are other sales people, and they are making target, then the inefficiency role is greatly reduced. 
> If the above is on target, then you need to ask yourself - why have my sales slipped? Some of those questions may be: -
> - Perhaps you have had a personal crisis.
> - Perhaps a new manager or team player has dented your morale
> ...



Well from my side I have not made target once this year of working for them. I worked hard securing new blue chip clientele for them. But it seems that every time I request estimations and other information it gets pushed into a queue and sometimes I have to wait between a week and 3 weeks in order for me to get estimated prices out of my head office to send to the client (Estimation according to our ISO procedures are 24 – 72 hours). This puts added pressure on the newly developing relationship the sales person and their new client. The competitor companies respond between 24 – 48 hours normally with a quote (I tested this out with a few outsourced items vs in-house manufacturing). This has resulted in a lot of my potential sales to be lost as well as a few clients whom has stopped corresponding with me. 

I have explained written to the director earlier this year and asked for guidance and help as I was doing all the ground work but not having any luck with closing the deals (I was told telephonically that this does take time and that I should not worry). I have requested when they did the sales training through email that I shadow my superior to his meetings to see how he interacts with new clients and deals (This was ignored and no response was given). 

I am working towards my current targets for the evaluation as they have requested and currently standing on 42.36% of which I will need to reach 50% by Friday. Almost there.. Unfortunately I cannot see any of the other sales teams monthly figures  to compare and we do not hold sales meeting to discuss. Like I said before the evaluation was the first I heard of anything to do with my sales performance.

One thing I forgot to mention previously (I am not sure if this influence anything) is that I was started on a 3 month probation contract after which I was never handed a permanent contract but have been working for the company since June 2015.

----------


## HR Solutions

> Well from my side I have not made target once this year of working for them


Thats not good

----------


## Deviiance

> Thats not good


No judging before you have not followed the whole long complicated struggle with the company. 

It Is not like I have not been trying very hard. I have had successful meetings with numerous large corporate companies with the intention of doing business with our company. But by the time I can pitch for a tender the due date is already gone and the clients have moved to a competitive supplier. FYI most sales personnel only make about 40  60% of their targets they have a few months where they actually reach target.

----------


## Citizen X

> Well from my side I have not made target once this year of working for them. I worked hard securing new blue chip clientele for them. *But it seems that every time I request estimations and other information it gets pushed into a queue and sometimes I have to wait* *between** a week and 3 weeks in order for me to get estimated prices out of my head office to send to the client (Estimation according to our ISO procedures are 24 – 72 hours).* This puts added pressure on the newly developing relationship the sales person and their new client. The competitor companies respond between 24 – 48 hours normally with a quote (I tested this out with a few outsourced items vs in-house manufacturing). This has resulted in a lot of my potential sales to be lost as well as a few clients whom has stopped corresponding with me. 
> 
> I have explained written to the director earlier this year and asked for guidance and help as I was doing all the ground work but not having any luck with closing the deals (I was told telephonically that this does take time and that I should not worry). *I have requested when they did the sales training through email that I shadow my superior to his meetings to see how he interacts with new clients and deals (This was ignored and no response was given).* 
> 
> I am working towards my current targets for the evaluation as they have requested and currently standing on 42.36% of which I will need to reach 50% by Friday. Almost there.. Unfortunately I cannot see any of the other sales teams monthly figures to compare and we do not hold sales meeting to discuss. Like I said before the evaluation was the first I heard of anything to do with my sales performance.
> 
> One thing I forgot to mention previously (I am not sure if this influence anything) is that I was started on a 3 month probation contract after which I was never handed a permanent contract but have been working for the company since June 2015.


Hi Deviaance,

If the worst does come to the worst, the cases I cited will prove to be helpful. Continue to keep meticulous records

----------


## HR Solutions

> No judging before you have not followed the whole long complicated struggle with the company. 
> 
> It Is not like I have not been trying very hard. I have had successful meetings with numerous large corporate companies with the intention of doing business with our company. But by the time I can pitch for a tender the due date is already gone and the clients have moved to a competitive supplier. FYI most sales personnel only make about 40 – 60% of their targets they have a few months where they actually reach target.



I am not judging at all, merely wondering, considering you did not reply to my earlier post.  Something does not sound right here.  The guys can mention all the cases in the world here, and they are not wrong, but bear in mind my first post.

----------

