Misconduct, Poor Performance or Incapacity? Why the Difference Matters

Misconduct, Poor Performance & Incapacity - DMF Attorneys

When an employee is not meeting expectations, an employer’s first reaction may be to start disciplinary action.
But not every workplace problem is misconduct.
South African labour law distinguishes between misconduct, poor work performance and other forms of incapacity. Identifying the problem correctly matters because each may require a different approach before dismissal can fairly be considered.
The current Code of Practice: Dismissal provides separate guidance on misconduct and incapacity, including poor work performance.

What is misconduct?

Misconduct concerns an employee’s conduct or behaviour.
It generally involves the employee breaching a workplace rule or standard that the employee knew, or could reasonably have been expected to know.
Examples could include insubordination, unauthorised absence, dishonesty or breaching workplace rules, depending on the circumstances.
When considering dismissal for misconduct, relevant questions include whether there was a valid and reasonable workplace rule, whether the employee knew or should have known about it, whether the rule has been applied consistently and whether dismissal is an appropriate sanction.
That is fundamentally different from an employee who is trying to perform their job but is not meeting the required standard.

What is poor work performance?

Poor work performance concerns an employee’s ability to perform their work to the required standard, rather than deliberate misconduct.
Where an employee has completed probation but is not performing satisfactorily, the current Code says the employer should generally evaluate the employee’s performance and provide appropriate evaluation, instruction, training, guidance or counselling.
The employee should also be given a reasonable opportunity to improve.

Before dismissal for poor performance, relevant considerations include whether:

the employee failed to meet a performance standard;
the employee was aware, or could reasonably have been expected to be aware, of that standard;
the employee was given a fair opportunity to meet it;
the standard was reasonably achievable; and
dismissal was an appropriate response.

Simply treating poor performance as misconduct can therefore result in the wrong procedure being followed.

What is incapacity?

Incapacity is broader than poor performance.
The Code specifically addresses incapacity resulting from physical or mental ill health or injury, which may be temporary or permanent.
Where an employee is temporarily unable to work because of illness or injury, the employer should investigate the extent of the incapacity.
If the employee is likely to be absent for an unreasonably long period, the employer should consider possible alternatives to dismissal.

Relevant factors can include:

the nature of the employee’s job;
the likely period of absence;
the seriousness of the illness or injury; and
whether a temporary replacement could be used.

What if the incapacity is permanent?

Where incapacity is permanent, the employer should consider whether alternative employment is available or whether the employee’s duties or working circumstances could reasonably be adapted.
The employee should also have an opportunity to respond during the investigation and may be assisted by a trade union representative or fellow employee.
The Code says particular consideration should be given where an employee has been injured at work or incapacitated by a work-related illness. In those circumstances, the employer’s duty to accommodate the employee is more onerous.

Why does choosing the correct process matter?

Imagine an employee is repeatedly failing to complete work to the required standard.
If the problem is genuinely poor performance, issuing disciplinary warnings for misconduct may miss the real issue. The employee may instead need to understand the required standard, receive appropriate guidance and be given a reasonable opportunity to improve.
Similarly, if an employee cannot perform certain duties because of an illness or injury, the employer should not simply assume that the employee is refusing to work.
The cause of the workplace problem needs to be established first.

Does poor performance always require warnings?

Not necessarily in exactly the same way as misconduct.
The current Code recognises that circumstances differ.
For example, depending on the circumstances, an employer may not always be required to warn a manager, senior employee or highly skilled professional that failure to improve could result in dismissal where their experience and level of responsibility mean that they should reasonably understand the required standard.
That does not mean these employees can simply be dismissed arbitrarily. The fairness of the performance standard, opportunity to meet it and overall circumstances still matter.

Can illness or injury automatically lead to dismissal?

No.
Illness or injury does not automatically justify dismissal.
The employer should investigate the nature and extent of the incapacity and consider relevant alternatives. For permanent incapacity, this includes considering alternative employment or adapting duties or working circumstances where appropriate.
The Code also recognises that counselling and rehabilitation may be appropriate in certain forms of incapacity.

Practical HR starts before there is a dispute

Many labour disputes can become more complicated because the underlying workplace issue was incorrectly identified at the beginning.
Before deciding what process to follow, employers should ask:

Has the employee broken a workplace rule? This may be misconduct.
Is the employee trying but failing to meet a required performance standard? This may be poor performance.
Is the employee unable to perform the work because of illness, injury or another form of incapacity? An incapacity process may be appropriate.

Keeping proper records of performance discussions, disciplinary steps, assistance provided and decisions made can also become important if the matter later develops into a labour dispute.

Need advice on a workplace problem?

Choosing the correct process at the beginning can help employers address workplace problems fairly and reduce the risk of unnecessary disputes.
DMF Attorneys assists employers and employees with labour law, disciplinary matters, poor performance, incapacity and workplace disputes.

Contact DMF Attorneys for advice on labour and employment-law matters.