THE DIFFERENCE BETWEEN MISCONDUCT AND PERFORMANCE

When employee issues arise, it can become confusing for the employer when determining whether an issue relates to performance or misconduct. Furthermore, executing corrective action can be overly rigorous and daunting. Misconduct is typically the most frequent issues that employers deal with on a daily basis. Misconduct relates to the breaking of a valid and reasonable rule, where behaviours or actions infringe on accepted norms in the workplace for example violations relating to company policies, regulations, professional standards, and ethical norms. Misconduct disrupts the workplace and can carrying grave consequences for both employee and employer. It is therefore best practise to clearly communicate the company’s position on what is regarded as acceptable behaviour through company polies and company values.

Performance on the other hand does not relate to conduct, behaviour or actions however is concerned with whether the employee is performing against the expectations or standard set out by the employer. Poor work performance refers to the failure or inability of the employee to reach and maintain the employer’s required work performance standards in terms of output. This can become apparent in many ways, such as consistently failing to meet agreed targets, or demonstrating a lack of required skills and competencies. It is implicit in all employment contracts that the employee undertakes to perform according to the reasonable, lawful, and attainable work performance standards required by the employer. Managing poor performance is a corrective action taken by the employer to support the employee in bridging the performance gaps. This process includes identifying the cause of performance gaps, meeting regularly with the employee to monitor and provide feedback on the employee’s performance and In the context of employment, this means that the employer should not take disciplinary action in the absence of a fair hearing.

A fair process includes adequate notice of a disciplinary enquiry, and the employee must be aware of the precise reason or charges. The employee has the right to defend himself or herself. Implicit in this right is that the employer must conduct an investigation into the alleged misconduct, the employee must be given the opportunity to be heard and the employee is entitled to representation and call witnesses. understanding the barriers that exist that prevent the employee from meeting the required standard. Poor performance can be managed through a performance improvement programme (PIP). Where the employee fails in the duty to perform, the employee is said to be incapable, and the employer has the right to dismiss after following a fair procedure and ensuring that the dismissal is for a fair reason.

A Structured System

Misconduct leads to disciplinary action, which must be commensurate with the offence. This is the measure for substantive fairness. Employers typically communicate a schedule of offences to their employees or code of conduct in the company handbook. The schedule of offences classifies workplace misconduct into two categories minor and gross misconduct and provides the employee with the outcome of actions that violate workplace rules. It is best practise to adopt a progressive and corrective approach to disciplining employees, where appropriate. Minor offences relate to for example absence in the workplaces where, gross misconduct refers to serious violations, such as fraud, physical violence, harassment, or significant breaches of confidentiality. Gross misconduct often leads to dismissal.

 Progressive discipline is a structured system of addressing employee misconduct, where the severity of the penalties increases with repeated violations. T his method aims to correct behaviour through a progressive approach, rather than resorting to a first offence dismissal. The Labour Relations Act, specifically Schedule 8, endorses this concept, emphasizing corrective discipline over punitive measures.

 The progressive discipline system is designed to be corrective, however, there are exceptions where dismissal is justified. The progressive and corrective approach is appropriate for minor offenses for example tardiness. An employer would not dismiss an employee for reporting late for duty as a first offence. According to the Code of Good Practice: Dismissal in the Labour Relations Act, dismissal for a first offence is appropriate if the misconduct is severe and renders the continuation of the employment relationship broken and or intolerable. Examples of such misconduct include dishonesty, harassment, or intimidation. Disciplinary action must be fair, the LRA has set out guidelines in order to establish whether a dismissal for misconduct is substantively fair, it stands to reason that prior to the employer taking disciplinary action, grounds for disciplinary action must be established.

The following questions must be answered in the affirmative prior to deeming a dismissal fair:

 1. Whether a rule regulating conduct in the workplace existed, the rule was contravened by the employee

2. Whether the rule was valid and reasonable

3. Whether the employee was aware of the rule, or could reasonably be expected to have been aware of the rule

4. Whether the rule has been applied consistently by the employer

5. Whether dismissal is the appropriate sanction for the contravention of the rule Where it is found that the employee did contravene a valid and reasonable rule, which the employee was aware of, which had previously been, and still is applied consistently, it is possible that the employee is guilty of misconduct.

 A Balance Of Probabilities

It is commonplace that in disciplinary proceedings, the employer bears the onus to prove its allegations against an employee on a balance of probabilities. This standard must be differentiated from the standard applied in criminal cases, namely proof beyond a reasonable doubt. An employer is not required to prove that the misconduct is beyond a reasonable doubt – i.e. that if any reasonable doubt or possibility of any other explanation exists as to the employee’s guilt, the employee cannot be found guilty. The version presented by the employer to substantiate the allegations of misconduct, must be found on the whole to be more probable or likely than that of the employee.

In addition to substantive fairness, the employee must be taken through a fair process, most significant are enshrined in the maxim ‘audi alteram partem’ which means ‘hear the other side’. The principles of Natural Justice are fundamental legal doctrines ensuring fairness, impartiality, and reasoned decision-making in judicial and administrative proceedings. Rooted in moral principles and common law traditions, they protect employee from arbitrary actions by requiring due process in decision-making.

In the context of employment, this means that the employer should not take disciplinary action in the absence of a fair hearing. A fair process includes adequate notice of a disciplinary enquiry, and the employee must be aware of the precise reason or charges. The employee has the right to defend himself or herself. Implicit in this right is that the employer must conduct an investigation into the alleged misconduct, the employee must be given the opportunity to be heard and the employee is entitled to representation and call witnesses.

Each case must be judged on its merits, ensuring that the sanction is appropriate to the specific circumstances.

Robust Policy Handbook Pivotal to managing misconduct in the workplace is a robust policy handbook which will guide employees on the expected behaviour and consequences of non- compliance. It imperative that employers act on misconduct, the adage that justice delayed is justice denied applies to labour law in the sense that employers that act too slowly can be found to be diluting the seriousness of the offence. Legal and procedural approaches to address these issues differ significantly. Misconduct typically leads to disciplinary action, which may include warning, suspension, or termination.

Poor performance requires a performance management process, which focusses on identifying the root cause of a problem, providing support, training, and setting clear expectation for improvement. Dismissal for poor performance should only be considered after a fair and thorough process of performance management has been followed. This summary provides a broad overview of misconduct and poor performance in the workplace. Employers struggling with substantive and procedural uncertainties should gain legal guidance from HR due process professionals.

For more information please contact Colette Tanner,

T: +27 (0)31 767 0625

E: colette@drg.co.za

W: www.drg.co.za