Instead, a counselling process addressing the problematic issues (e.g. If an employee is unable / does not have the capacity to meet these standards due to factors out of his/her control, it cannot be misconduct and disciplinary procedures are not applicable. Incapacity refers to an employee’s inability to meet and adhere to acceptable and reasonable workplace standards – in this scenario, the employer’s performance- or attendance standards. In this case, fault / blameworthiness on the part of the employee is implied and a disciplinary process is therefore appropriate. In other words, the employee breaks a rule or standard in circumstances where he or she could have complied, but either refused or failed to do so. Misconduct refers to situations where an employee is capable of meeting workplace standards or rules, but fails to do so without an acceptable reason. In Schedule 8 of the Act, an explicit distinction is made between the substantive and procedural requirements for misconduct- and incapacity dismissals respectively. Such dismissals must be for a fair reason and a fair procedure must have been followed. In terms of the Labour Relations Act, an employee can be dismissed for reasons relating to his/her conduct, capacity, or for the employer’s operational requirements. If this is not the case, then a quick disciplinary route will not be an option and could give rise to an unfair dismissal claim. The employer must be able to prove that the employee’s lack of performance or frequent absences actually constitute misconduct on the part of the employee. The mere fact that “sick leave abuse” and “poor performance” may be framed as offences in an employer’s disciplinary code, does however not automatically mean that employees could therefore always be disciplined when taking frequent (and suspiciously timed) sick days or whenever their performance is not up to standard. We are regularly contacted by employers who have reached a point where they have no tolerance left for problems with an employee in this regard and then want a quick solution for ending the employment relationship, usually in the form of a disciplinary hearing on a charge of “sick leave abuse” or “poor performance”, as mentioned in their disciplinary code. Looking for a quick fix when reaching the point where frustration levels become intolerable, is not the answer.Ībsenteeism and poor performance are two of the most unmanaged areas in the workplace – which can be due to fear of conflict, procrastination, lack of control and in many instances, lack of knowledge. Employers become despondent about the impact on productivity and service levels, and increasingly frustrated with employees who are unreliable and cannot be trusted to deliver. Sick leave abuse, poor performance and the disciplinary codeĪbsenteeism and poor performance are without a doubt two of the most challenging employment management issues that employers struggle with on a continuous basis.
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