Misconduct or Poor Performance?

Proceeding with formal disciplinary action against an employee often presents many challenges for organisations, especially if they are not familiar with the relevant legal provisions.

The biggest challenge that I have found facing clients though, is determining whether an employee’s conduct or an incident relates to misconduct or poor work performance.

There is a simple test to establish whether it is indeed misconduct. You need to ask two (2) simple questions and you have to be able to answer both of them in the affirmative.


Misconduct has 2 main elements to it:

a) act or omission; and

b) blameworthiness by means of either intent or negligence.


Act or Omission

You simply need to establish that something was done (an act) or was not done (an omission).

Let’s say for example that damage has been caused to offices due to a fire which broke out. An investigation has established that the fire was caused by a faulty airconditioning unit which was not turned off during the evening.

Here we have a fire that occurred, apparently as a result of an omission.

But we cannot yet charge anyone with misconduct until we have answered the second question and established whether there is an element of blame.



Blameworthiness can be established through the existence of either ‘intent’ or ‘negligence’.

The legal test for ‘negligence’ is the ‘reasonable person test’ in terms of which we ask ‘would a reasonable person, given the same or similar circumstances, have acted differently?’. If we are able to answer that question in the affirmative, we are dealing with negligence. And because there was the option to have acted differently and possibly avoid the incident altogether, there is an element of blameworthiness present in negligence matters.


Now, back to our example of the fire in the workplace.

Our investigation has now revealed that employee X is responsible for ensuring that all lights, appliances and plugs are turned off in the evenings after everyone has left the building. Employee x skipped the entire floor where the fire broke out, because they were in a hurry to get home and assumed that there wouldn’t be a problem this one time.

Would a reasonable person have acted differently? Could the fire have been avoided if something different was done? Of course!


So, in the example that we have used here, we would definitely proceed to charging employee x with misconduct because a) there was an omission on their part (they didn’t perform all their duties) and b) there is blameworthiness because the employee was negligent and had the choice to act differently, but chose not to.


Another simple test to use to establish whether you are dealing with misconduct or poor work performance, is to ask whether it is “can’t do” or whether it is “won’t do”.

In an instance where an employee has all the resources and skills required to perform a specific function and they have done so successfully in the past, and there are no other factors which could explain their non-compliance, one is usually dealing with misconduct (won’t do).

If however, there were factors which prevented the employee from complying (lack of experience, knowledge, training, power outages, equipment breakdowns, poor planning etc) it is much more likely that you are dealing with poor work performance (can’t do).


It is always advisable that you consult with an employment law specialist prior to formulating charges or proceeding with formal disciplinary action, so as to ensure that you are proceeding correctly.


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