The difference between poor work performance and misconduct: and why you should know

As an employee you must know the difference between poor work performance and misconduct to ensure that you are treated fairly, as dismissal for poor work performance (incapacity) and misconduct are by definition two distinct and diverse concepts.

You can be dismissed for both, but the dismissal will be unfair if it is not done for a fair reason (substantive fairness) and according to a fair procedure (procedural fairness). Employees can be dismissed for conduct, capacity and operational requirements, says firm of attorneys Lanham-Love Galbraith-Van Reenen.

The Code of Good Practice provides guidelines for dismissals relating to conduct and capacity, but it is crucial that the dismissal is correctly categorised, as failure to categorise the dismissal correctly could result in an unfair dismissal.

Incapacity relating to poor work performance happens when an employee persistently fails to meet certain performance standards due to potentially lacking the skills, knowledge or competencies to meet the employer’s standards.

On the other hand, misconduct is based on the employee’s intentional or negligent non-compliance with company rules or standards. A degree of blameworthiness is therefore ascribed to the employee, such as when an employee was able to do what was required but deliberately and intentionally failed to do it.

However, misconduct is often miscategorised as poor work performance while it is actually insubordination, which includes the refusal on the part of the employee to obey a reasonable instruction.

ALSO READ: Insubordination at work – a fine line between disobedience and disrespect

Poor work performance (Incapacity)

Employers must decide if a dismissal for poor work performance will be substantively fair, considering whether or not the employee failed to meet a performance standard and if the employee did not meet the required performance standard, whether or not the employee was aware, or could reasonably be expected to have been aware, of the required performance standard.

The employee must also get a fair opportunity to meet the required performance standard and dismissal can be considered as an appropriate sanction for not meeting the required performance standard.

Misconduct

When employers have to ensure that a dismissal for misconduct will be substantively fair, the employer should consider whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace and If a rule or standard was contravened, whether or not the rule was a valid or reasonable rule or standard that the employee was aware of and that it was consistently applied by the employer.

Dismissal must also be considered as an appropriate sanction for the contravention of the rule or standard for it to be substantively fair.

ALSO READ: Have you lost your job? You could be entitled to severance pay

A fair procedure

According to Lanham-Love Galbraith-Van Reenen, these guidelines should be followed to ensure that a fair procedure is followed for both categories of dismissals:

• All employers should adopt disciplinary rules that establish the standard of conduct required from employees, which create certainty and consistency in the application of discipline.
  The standard of conduct must be made available to employees in an easily understandable format, such as posting the disciplinary rules on a notice board that is accessible to all employees or incorporating the disciplinary rules into the employment contract.
  
• Employers must try to correct employees’ behaviour through a system of graduated disciplinary measures, such as counselling and warnings.
  
• Formal procedures do not need to be invoked every time a rule or standard is broken, but repeated offences will warrant written warnings.
  
• Employers should keep records of employees’ disciplinary transgressions, actions taken and reasons for doing so.
  
• Employers must investigate to determine whether there are grounds for dismissal.
  
• Employers must notify the employee of the allegations in a way that the employee can understand, namely a clearly worded charge sheet.
  
• Employees must be given the opportunity to state a case in response to the allegations.
  
• Employees must get reasonable time to prepare a response.
  
• Employees are entitled to the assistance of a trade union or fellow employee.
  
• Employers must communicate the decision taken to the employee after the enquiry in writing.
  
• Employees must get reasons for their dismissal and be informed of their right to refer the matter to a council, commission or dispute resolution forum.

Lanham-Love Galbraith-Van Reenen says these guidelines provide the process which should be followed in order for a dismissal in both categories to be considered a procedurally fair dismissal.

“If this procedure is not followed, the dismissal will be deemed to be an unfair dismissal.”

They also recommend that a disciplinary hearing is held according to the guidelines for procedural fairness. Procedural fairness also includes appropriateness and consistency of sanction, considering mitigating and aggravating circumstances and the appointment of an unbiased chairperson.

A fair dismissal

These additional procedural steps are necessary to enact a fair dismissal for poor work performance and misconduct:

ALSO READ: Trouble at work? These are your rights when facing a disciplinary hearing

Poor work performance (Incapacity)

When dealing with the dismissal of employees for poor work performance after their probation period has ended, employers must follow these additional procedural steps:

• The employer must provide appropriate evaluation, instruction, training, guidance or counselling for the employee
• The employer must investigate to establish reasons for the poor work performance
• The employee must get a reasonable period of time for improvement of work performance
• The employer must consider other ways, short of dismissal, to remedy the matter and
• During this process, the employee has the right to be assisted by a trade union representative or fellow employee.

ALSO READ: Problem with your manager at work? Here’s how to file a grievance

Misconduct

When dealing with the dismissal of employees for misconduct, employers must follow these additional procedural steps:

• It is generally not appropriate to dismiss an employee for a first offence, unless the misconduct is so serious that it makes the continued employment relationship intolerable
• When deciding whether to impose a penalty of dismissal, the employer must consider the employee’s length of service, previous disciplinary record and personal circumstances and
• The employer should apply the sanction of dismissal consistently.

Lanham-Love Galbraith-Van Reenen say it is therefore clear that the substantive and procedural fairness requirements differ, depending on the nature of the offence. “Mis-categorisation of an employee’s actions which can lead to the dismissal being judged unfair, happen purely because the employer fails to follow the correct guidelines when dismissing the employee.

“Therefore, the employer must be certain of which category of offence has been committed, either poor work performance (incapacity) or misconduct. This will assist in identifying which substantive and procedural requirements must be met to bring about a fair dismissal.”