Poor work performance remains a significant challenge in employment relationships and is legally distinct from misconduct. Misconduct concerns deliberate wrongdoing, while poor performance involves an employee’s inability to reach the level of competence their work requires. Because these two concepts rest on different foundations, the Labour Act No. 3 of 2024 and the preserved Codes of Good Practice under Legal Notice No. 4 of 2003 provide a specialised framework for dealing with underperformance in a manner that is fair, corrective, and evidence based.
Understanding Poor Work Performance
In labour law, poor performance refers to a situation where an employee does not meet the standard reasonably expected in their job, despite the absence of intentional defiance. As Grogan explains in Workplace Law, the issue centres on capability rather than fault. Employees may be underperforming when they repeatedly miss deadlines, produce substandard work, fail to apply training, or receive ongoing complaints from clients or colleagues.
Section 139(1)(a) of the Labour Act 2024 recognises capacity related shortcomings as a valid basis for terminating employment, provided fairness is established. The Codes of Good Practice offer detailed guidance on these requirements.
- Code 12 requires that performance standards must be realistic and clearly communicated.
- Code 13 outlines that the employee must know the standard, fail to reach it consistently, and receive assistance.
- Code 14 sets out the steps that must be followed before a dismissal for poor performance can be justified.
These provisions demonstrate that performance management is intended to support improvement rather than impose punishment.
Substantive Fairness Requirements
To justify termination based on poor work performance, the employer must demonstrate that the employee’s work fell below a reasonable standard that was known to the employee. Substantive fairness requires proof that the employee:
- Was aware of the expected performance level
- Failed to meet that standard over time
- Did not improve despite intervention
- Was not hindered by factors beyond their control such as lack of tools, insufficient training, or excessive workload
Code 13(3) confirms that the assessment is factual and must be proven on a balance of probabilities. Performance evaluations, coaching records, warnings, and work output reports are essential pieces of evidence.
Procedural Fairness Requirements
Even where underperformance is evident, the employer must still follow a fair and supportive process. Code 14 outlines the procedural elements that must be followed, including:
- Identifying and discussing the shortcomings with the employee
- Providing coaching, supervision, or training where necessary
- Allowing adequate time to improve
- Informing the employee that continued underperformance may result in dismissal
- Investigating the underlying cause of the poor performance
A performance enquiry is not the same as a disciplinary hearing. The aim is to understand the root causes of the performance difficulty and give the employee an opportunity to improve.
Reasonable Timelines for Improvement
The Codes do not prescribe fixed improvement periods. What is reasonable depends on the nature of the job, the experience level required, the employee’s length of service, and the seriousness of the performance deficiencies. New employees may require more time and guidance, while more experienced employees may need structured coaching.
All steps taken to assist the employee should be documented. Such records are often decisive in disputes.
The Court of Appeal case Lesotho Revenue Authority v Bohloko (C of A CIV No. 1/2016) remains the leading authority on poor performance dismissals. The Court held that the non-renewal of a contract on the grounds of underperformance was fair where the employee had received repeated warnings, understood the expectations, and failed to improve. The decision confirms that performance concerns must be managed during the employment period, not only at contract expiry.
Probation as a Performance Management Tool
Probation allows employers to assess suitability before confirming an appointment. As noted by Grogan in Workplace Law, probation clauses traditionally offered employers more flexibility to terminate employment during the probation period, provided notice was given.
Section 128 of the Labour Act 2024 modernises this concept.
- A probation period may be up to four months unless extended with the approval of the Labour Commissioner.
- During probation or at its expiry, an employer may dismiss the employee on one week’s notice.
- Section 142(1)(a) states that employees dismissed during a lawful probation period cannot bring an unfair dismissal claim.
- Section 128(4) introduces an extended probation period of up to one year for managerial and professional employees.
- This system gives employers a structured opportunity to evaluate capability before confirming the role.
Conclusion
Poor work performance is a capacity related concern that requires a careful and structured approach. The Labour Act 2024 and the preserved Codes of Good Practice emphasise fairness, transparency, and support. When employers communicate performance standards clearly, document interventions, provide opportunities for improvement, and follow the required substantive and procedural steps, the law supports termination where performance ultimately does not improve.
Probation further strengthens this framework by allowing employers to test competence at the start of the employment relationship. When applied correctly, these legal mechanisms ensure that performance management is fair, evidence based, and consistent with the evolving landscape of employment regulation in Lesotho.