Subscribe to industry newsletters


Search jobs

Difference between misconduct and poor performance

Very often there is a thin line dividing misconduct from poor performance. It is a distinction many employers fail to identify when disciplining their employees. They are not alone. A commissioner of the CCMA did likewise as appears from the case of Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration & Others.
Difference between misconduct and poor performance
© JohnKwan –

The employee, a senior sampler in a gold mine, was charged with misconduct and dismissed for serious neglect of his duties. Despite the fact that he was dealing with a misconduct case, the commissioner found the employee guilty of poor work performance and that the sanction of dismissal too harsh. He reinstated the employee without back-pay.

The Labour Court did not interfere with the decision, finding that the outcome was reasonable despite the mis-categorisation. The Labour Appeal Court took a different view. It held that the requirements to satisfy a fair dismissal for misconduct are different from those that must be shown in a case of dismissal for poor performance (incapacity).

Code of good practice

To decide on the fairness of a dismissal for misconduct, item 7 of the code of good practice comes into play i.e. there must be a contravention of a rule or standard regulating the employee's conduct. Poor performance on the other hand is measured differently. Incapacity involves an inability of the employee to do his/her duties properly, requiring remedial counselling to bring the employee up to standard, failing which (after being given time), the employee can be dismissed.

In this case the evidence showed a deliberate and intentional failure of the employee to do his duty
properly with serious potential financial consequences. There was no suggestion that the employee did not know or understand his duties and thus needed guidance. On his own admission he simply did not do his job which he fully understood.

The commissioner's award was found to be irregular and set aside with the dismissal being found to be fair. The irregularity related not only to the mis-categorisation by the commissioner, but also having regard to the different processes, the unreasonableness of the conclusion reached as a result of the mis-categorisation.

It is thus extremely important for employers, at the outset of disciplinary proceedings (with professional guidance if necessary), to determine whether or not they are dealing with misconduct or incapacity and not to confuse the two.

About Richard Pemberton

Richard Pemberton is an executive consultant in the Employment Law Department at Garlicke & Bousfield Inc.

Let's do Biz