it's wise to seek labour law advice before acting
16 October 2007  

The dividing line between misconduct and poor work performance is not absolute as the same offence may fall within both categories.  The importance of categorising the offence as misconduct or poor performance relates to which disciplinary procedure to use.

A procedurally and substantively fair dismissal for poor work performance needs to comply with the prerequisites as per the Labour Relations Act's Schedule 8 Code of Good Practice.

Employers are facing the daily frustration of employees negligently not performing.  Where negligence and poor work performance (incapacity) overlap, it is permissible to treat the poor work performance as negligence and thus as a form of misconduct.

This will allow employers to hold the customary disciplinary hearing and impose an appropriate sanction, including dismissal and, as such, it does not necessitate compliance with the code's procedural requirements per se.

Employers are cautioned not to willy-nilly categorise all instances of non-performance as negligence. A clear understanding of labour law principles are necessary, as well as a careful analysis of the actual circumstances.  It is an entrenched employment principle that employers may require their employees to work according to the reasonable standards - quantitative and qualitative - set by their employers.

Where an employee fails to attain the standards, the employer may terminate the employment contract due to the employee's incapacity.   According to the code, dismissal for incapacity is divided into two categories, namely:

Dismissal for poor work performance because the employee lacks the skill, knowledge or efficiency to meet the employer's performance standard.

Because of an employee's inability to work or meet the standards due to illness or injury.  The code also requires different procedures to be followed prior to such incapacity dismissals.

Incapacity dismissals are normally described as no-fault dismissals as the employees are unable to perform their work to the employers' set standards due to incapacity arising from a lack of skill or a physical or mental inability.

In contrast with the aforesaid, poor work performance could be categorised as negligence and thus a form of misconduct. As per case law, examples of such dismissals include a nurse who failed to take proper care of patients, a bus driver who caused an accident due to reckless driving, a clerk who failed to file important documents, etc.

These negligence dismissals normally have as a basis the workplace rules, standards or procedures and an employee's failure to take the necessary steps to ensure that the work is performed properly.

Negligence thus manifests itself in an act or omission, namely whether a reasonable person would have ensured the necessary care and/or diligence in order to prevent the act or omission.

For example, the bus driver should have stopped at the stop street. When dismissing for negligence, it is not necessary to prove willfulness of intent, but rather the lack of care and/or diligence that accompanied the act or omission.

The requirements for a fair dismissal for negligence are:

That an employee failed to exercise the standard or level of care and skill that can reasonably be expected.

That the lack of care and skill manifested itself in an act or omission that caused or could have caused a loss or prejudice to the employer.

That the loss or potential loss was due to the employee's negligent act or omission.

The negligence must be gross.

In labour law's gross negligence occurs where an employee is persistently not fulfilling a certain task or act or if the act or omission is in itself particularly serious or particularly inexcusable.

In case law, where the consequences of a single act or omission are particularly serious, or when an employee holds a position in which a single act of negligence has serious consequences, or where the employee possesses or claims to possess special skills and experience, dismissal for a single act and on the first occasion could be justifiable.

In practice it could be difficult for employers to categorise the act or omission, especially in deciding whether to treat it as misconduct and hold a disciplinary hearing or whether to follow the more laborious procedures of the code and, for example, counsel and guide the offending employee.

Employers will be wise to seek labour law advice prior to merely charging all non-performing employees with negligence or misconduct.

Next week we will further discuss the practicalities of poor performance and misconduct by analysing a Labour Appeal Court case.

Pierre Marais is managing director of the Labour Law Group. Contact him on 011-679-5944. 

Pierre Marais, www.ioljobs.co.za