26/06/2018
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Distinguishing Misconduct from Incapacity
Johanette Rheeder
Misconduct and incapacity are different in that it mainly resolves around intent. In the case of misconduct, an employee is either negligently or intentionally responsible. In the case of incapacity, the employee is either not performing due to various reasons such as a lack of training, incompetence or not being given opportunity to correct performance. Incapacity has largely been codified by schedule 8 of the Labour Relations act and employers should ensure that their practices and policies comply with the schedule in this regard.
The courts recognise that the employer is entitled to set his work performance standards in terms of quantity and quality of output, and provided the standards are reasonable, there will be no problem. It is also held that the employer is entitled to monitor the performance of an employee, and to assess whether or not the standards have been met.
Work performance standards are not legally required to be written into a contract of employment, but obviously employees must be informed of what standards of performance are required, in terms of quantity and quality of output, otherwise, equally obviously, they cannot perform if they do not know what is required of them.
It is an implied condition in the contract of employment that the employee has agreed to display reasonable efficiency in the performance of his duties.
A process of disciplinary action or disciplinary codes and procedures does not deal with performance, as it is seen as a form of incapacity and discipline deals with matters of misconduct. Misconduct relates to the employee’s behaviour in the workplace – it has nothing to do with his work performance. (Unless, of course, he chooses for some reason, such as a poor attitude, not to perform).
Matters of incapacity, based on performance, are dealt with through a process of counselling, evaluation, guidance and training. Mostly employers deals with performance based incapacity by way of a different process, generally known as a performance review process, which should be captured in a policy and should prescribe some sort of performance management plan for the employee and his/her supervisor or manager. If the employer has no such policy or guideline, schedule 8 should be followed.
Therefore, behaviour can be said to relate to the employee’s observance of company rules and regulations, his observance of company policy and procedure, his observance and adherence to the terms and conditions of employment (whether stated in the employment contract or elsewhere), and his subservience to the employer’s direction, control and instructions.
There may also be other unacceptable actions by the employee that also constitutes misconduct.
Misconduct is identified by the following criteria:
a. has a rule or standard been broken?
b. if so, is that rule or standard reasonable, lawful and attainable?
c. if so, was the transgressor aware of that rule or standard?
d. or could he/she reasonably be expected to have been aware of it?
e. has the rule or standard been consistently applied by the employer?
The object of disciplinary action is to correct undesirable or unacceptable behaviour by an employee in the workplace, or (in certain circumstances) out of the workplace, by applying progressive disciplinary measures or sanctions.
The distinguishing characteristic between the disciplinary action process and the poor performance process is that with the disciplinary action, a sanction or is imposed. With the process for correcting poor performance, it is counselling, guidance, training and instruction that are given, rather than punishment. The only common factor is that both procedures can culminate in dismissal.
In both instances, should the processes fail and it is eventually decided that the employee simply does not have the ability to perform in terms of the inherent requirements of the job, or is incapable or refusing to of correcting his misconduct, then the employee may be dismissed after a due process has been followed. In the case of misconduct it is a disciplinary hearing and in the case of incapacity it is a poor performance discussion (with similar rights and procedures as a disciplinary hearing).
Records of poor performance and the procedure to manage is must be kept. It is a good practice to, from an early stage, record all complaints of misconduct or poor performance and put it in writing. This can be done by way of warnings for misconduct, minutes of meetings and counselling or formal or informal letters. Even early on notes in a diary about early on discussions or corrections performance can be valuable, as this is often how the process starts and mangers do not tend to keep records thereof. These documents must be kept in a separate file or the personnel file of the employee. Another effective tool can be detailed diary records of meetings and discussions, together with recorded agendas. Obviously there is a big difference between the procedural aspects of a disciplinary hearing and an incapacity procedure.
For an employee to know the standard required of her, an employer must set performance standards that an employee is required to meet. The work performance standards must be reasonable and fair, and must be attainable and must be agreed upon on regular intervals.
An employee cannot meet work performance standards if he has never been informed of what are those standards are. Obviously, the different jobs require different work performance standards and the employer must ensure that the required work performance standards are communicated effectively to the employee, and that the employee understands what is required of him. The standards must be both relevant and reasonable, and if necessary on-the-job training should be given. The employee should be provided the opportunity and time to perform in the position. The employee's work performance must be measured against the set of known standards and if the employee fails to meet the standard then that the employer should:
• Inform the employee that his work performance does not meet the required standards.
• Then, determine why the employee is not complying with the standard.
• Make sure the employee is informed or has been informed of the standard; or
• Train the employee according to the standard.
• Give the employee instructions or tasks to do on a periodical basis.
• Make sure the employee understands the task or instruction.
• Provide assistance or supervision by another employee or supervisor if necessary
• Feedback must be given to the employee on a regular basis. Depending on the feedback and the nature of the job, evaluation, training, instruction and guidance aimed at improving performance and/or meetings, discussions, and/or counselling should take place on a regular basis. The employee should be given reasons why the work was not done to satisfaction.
• Given the introduction of the above measures to improve performance, the employee should be given a reasonable time to improve. It is recommended that a program of regular feedback sessions - on a weekly basis - with the supervisor be introduced.
If performance is still not up to the required standard within a reasonable time, the employer must communicate that fact to the employee and must communicate to the employee that this matter is of a serious nature and that his dismissal may result if he does not attain and maintain the required work performance standard.
The employer should now conduct a further investigation to establish the reasons for the poor performance, and whether any alternatives such as changing some aspects of the job, or offering the employee another position, may solve the problem. Obviously the offer of another position can only be done where this is possible and feasible and with consent of the employee.
During this final stage, the poor performance discussion, the employee must be given an opportunity to state his case and to put forward any suggestions he has to improve his performance and any reasons that he may wish to put forward to account for the poor work performance. The employee has the right to be assisted by a fellow employee or a trade union representative and to state his defence against the poor performance charge. It would be prudent to schedule an incapacity hearing in a similar way as a disciplinary hearing with the same rights with regard to notice, representation, presenting a defence and evidence.
Everything must be communicated to the employee in writing, including a warning that, unless he is able to attain and maintain the required work performance standards, his dismissal may result.
If a final poor work performance dismissal discussion is held it is important that the employer establish whether dismissal is the appropriate penalty, or whether any alternatives exist. If no alternatives exist then it is possible that dismissal may be justified.
For more information contact Johanette Rheeder jrattorneys@yebo.co.za
