Employee Misconduct Versus Poor Performance

The Labour Relations Act, which is one of the cornerstones of Labour Law in South Africa, prescribes three grounds on which termination of employment is allowed in a legitimate manner. These may be found in Schedule 8 of the Act and include:

  • conduct of the employee
  • capacity of the employee
  • operational requirements of the employer’s business

It is important for employers to be able to distinguish these three termination grounds from one another as to find suitable remedies.

Dismissals based on “operational” reasons arise from factors outside of the employee’s control. They are thus called “no-fault dismissals.”

The focus of this article will be on the conduct of the employee, and it will highlight the important difference between misconduct and poor performance.

 Poor performance by the employee, along with injury or ill health, falls within the category of “capacity” dismissals. Poor performance must always be attributed to the employee. It implies that the employee is genuinely unable to perform his tasks in a proper manner. Before any action or remedy can be taken, there is a duty on the employer to ensure that training, guidance and an opportunity to improve performance is given.

“Conduct” as a ground for dismissal is based on the misconduct of the employee. As mentioned in the Act, examples of dismissable misconduct would include gross dishonesty, wilful damage to the property of the employer, physical assault on the employer or a fellow employee and gross insubordination.  This must be starkly contrasted to the poor performance in terms of the responsibilities and duties given to the employee.

Whereas incapacity is suggestive of an inability to perform, misconduct is directly related to the fault on the part of the employee to not adhering to rules, standard or instructions. An employee is committing misconduct when, even if he can perform the work, he disregards the instruction or fails to pay sufficient attention or care to ensure that it is carried out. It is most likely that this will be remedied through disciplinary action.

Recent labour court judgments, such as Pienaar v Murray & Roberts Projects (Pty) Ltd, are proof that, in reality, it can be difficult to draw the line between performance incapacity and misconduct.

 It is for this reason that employers, who may have doubts or uncertainties concerning these practices, should get in contact with The Labour Counsel to make full use of our service to manage dismissals based on misconduct or incapacity.

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