Poor work performance (incapacity) vs. misconduct

Sep 7, 2009


We are often confronted with enquiries from clients that demonstrate that many managers
are still not familiar with the difference between misconduct and incapacity. The result of
this is that they end up dismissing people for the wrong reasons or follow incorrect
procedures prior to dismissal. The consequences of these errors can be very
expensive. In addition, applying the wrong solution to the problem means that the problem
is not addressed in the most effective manner.

The LRA recognises misconduct, incapacity and operational requirements as the three
grounds justifying the dismissal of an employee. Dismissal for operational requirements
and, to a lesser extent incapacity, is classified as ‘no fault’ dismissals. A dismissal for
misconduct, however, is based on the employee’s fault i.e., intentional or negligent non-compliance to company rules or standards. A degree of blameworthiness is therefore
ascribed to the employee. In respect of misconduct, the employer must prove that the
employee contravened a rule, was aware of or could reasonably be aware of the rule, that
the rule was valid and there was consistency in the application of the rule (substantive
fairness). The employer is required to give the employee an opportunity respond to the
allegations (procedural fairness). This may take the form of a disciplinary hearing or an
interview for lesser transgressions.

Incapacity relating to poor performance is prevalent where
an employee has persistently failed to meet certain
performance standards despite the employer offering
training, guidance, assistance and evaluation. In such a
case the employee would potentially lack the skills,
knowledge or competencies to meet the employer’s
standards. In this case the problem lies with the employee’s
‘aptitude’: although willing to do what is required, s/he is
unable to because of some factor linked to the employee
that s/he has little or no control over.

In order to fairly dismiss an employee based on poor performance, the employer is
required to prove that the employee did not meet existing and known performance
standards: that the under-performance is serious; and that s/he was given sufficient time,
training, support, guidance or counseling to improve (substantive fairness). Proof of
alleged instances of under-performance are essential (e.g., complaints from customers,
sales figures, etc.). It is critically important that the employer should be able to
demonstrate, if challenged at the CCMA, that the under-performance is due to the
employee’s inability and not some extraneous factor that cannot be laid at the employee’s
door and over which the employee has no control, e.g., market fluctuations. Any dismissal
for poor performance must, of course, also be procedurally fair.

The following examples illustrate the application of these broad principles.

Example 1 Bus Driver

Example 2 Relationships at Work

While the term ‘disciplinary procedure’ is often used by managers to refer to any action
taken against an employee, whether for misconduct or incapacity, we would advise that
managers should limit the use of the term ‘disciplinary’ to cases involving misconduct and
rather to refer to ‘incapacity’ procedures or something similar when dealing with
performance or ill health issues. Legally, while nothing turns on these terms, the different
terms suggest that a different ‘mindset’ is needed when dealing with the various

September 2009


This information is published for general information purposes and is not intended to constitute legal advice and should not be construed as such. Specialist legal advice should always be sought in relation to any particular situation. Maserumule will accept no responsibility for any actions taken or not taken on the basis of this publication. Consent must be obtained from Maserumule before the information provided herein is reproduced in any way. No person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against Maserumule and/or any of its personnel.