Misconduct vs Poor Work Performance

Both misconduct and poor work performance are recognised in the Labour Relations Act, 66 of 1995 as legitimate grounds for terminating an employment relationship.

Misconduct concerns the employee’s behaviour and requires fault in the form of intention or negligence.

Poor work performance is a species of incapacity and relates to an employee’s capacity to perform a job function up to the standard required by the employer.

In the matter of ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman NO (2013) 34 ILJ 2347 (LC) the honourable Snyman AJ differentiated between the concepts by asking two simple questions: “Did the employee try but could not?” and “could the employee do it, but did not?”. If the answer to the first question is “yes”, this would constitute poor work performance as the employee has tried to achieve what is expected of him/her/them but is unable to do so or apply the necessary care. If the answer to the second question is “yes”, this would constitute misconduct. The employee is fully capable to do what is expected of him/her/them but fails to achieve what is expected which can only arise from the deliberate failure to take care.

Misconduct and poor work performance are dealt with separately under the Code of Good Practice: Dismissal, attached as Schedule 8 to the Labour Relations Act, 66. Misconduct is dealt with in Item 7 of the Code and generally attracts progressive discipline in the form of verbal, written and/or final written warnings until the employee is finally dismissed following a disciplinary enquiry. However, where an employee performs poorly or sub-standard, pursuant to Item 9, read with Items 8(2) – (4) of the Code, the employee, ought to be counseled and, after having been given a reasonable period of time to improve his/her/their performance, a dismissal may follow an incapacity enquiry.

Mistaking a case of poor work performance for that of misconduct, or vice versa, will inevitably lead to the application of the incorrect process, which could lead to a labour dispute with costly implications for the employer, as was the case in Midas Group Komatipoort v NUMSA and Others (JR1585/14) [2018] ZALCJHB 83 (14 February 2018).

In the Midas Group matter, the employer sought to have an arbitration award reviewed which found the dismissal of two of its employees substantively unfair, and which determined that the employees be reinstated with retrospective effect to their date of dismissal with back pay equivalent to 6 (six) months’ salary.

Zodwa and Esther were both employed as cleaners, having commenced employment in 2009 and 2010, respectively. The employer had a problem when it came to the manner in which Zodwa and Esther discharged their cleaning duties and on 27 December 2013, dismissed them on three purported charges of misconduct. The first charge was unsatisfactory work performance, in that they did not complete tasks to acceptable standards from September to November 2013. The second charge was disobedience in failing to carry out lawful work instructions from September to November 2013. The third charge was disobedience in failing to comply with the cell phone policy from September to November 2013.

The employer effectively ‘charged’ Zodwa and Esther for both misconduct (insubordination) and poor performance based on the exact same circumstances and facts. This, the Court found, is an impermissible approach and improperly blurs the necessary distinction that must exist between misconduct and incapacity in the form of poor work performance. The Court pointed out that this lack of proper distinction is evident from the charge sheet itself. Reiterating the distinction between misconduct and poor work performance, the Court noted that an employee cannot be ‘charged’ for poor performance, subjected to disciplinary process, and then dismissed applying misconduct considerations. In the case of poor performance, the process has other objectives, which can broadly be described as being to identify the poor performance, establish what is required to resolve it, providing the employee with assistance to resolve it, and then allowing the employee a reasonable opportunity to achieve what is required. It is simply not the case of an employee being ‘guilty’ and a sanction imposed.

The Court concluded that the gravamen of the complaints against Zodwa and Esther had little to do with misconduct, and was at its core a poor performance issue and had to be dealt with accordingly. The employer could not prove that they performed poorly, and also did not comply with the provisions of the relevant items in the Code of Good Practice. Accordingly, the Court dismissed the employer’s application for review.

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