Many employers are unsure of what action is appropriate to take, under what circumstances, within the workplace. Should an act be dealt with by means of a written warning, or worse still, a disciplinary enquiry that may lead to dismissal? Or was it just a mistake, a human error that could have been corrected by means of a less formal, counselling approach? Fear of making the wrong decision and paying dearly at the CCMA or a Bargaining Council often causes many employers to simply take no action at all.
‘Misconduct’ is defined as the blameworthy breach of a workplace rule or a rule of relevance to the workplace.
Incapacity due to poor work performance
‘Poor work performance’ on the other hand, refers to a situation where an employee is not able to perform the duties and tasks associated with their position, at the standards that are required of them by their employer. In many cases, this poor performance may be as a result of the fact that the employee requires some additional training on the use of equipment, or they need help with their time management and planning skills.
But many incidents that occur in the workplace seem to inhabit a grey area between misconduct and poor performance, causing confusion for line managers on what the appropriate action would be under the circumstances.
Consider the following example:
Your business has grown to the point where you now have 250 employees and you hire John as your new full time HR Manager. He has 10 years’ experience working in HR and employee relations and you are confident that he is the right person for the job. Part of John’s job is to ensure that the annual employment equity report is completed and submitted to the Department of Labour. Three (3) months after the report was due for submission, a labour inspector visits your premises and you learn that your company didn’t make a submission. You are livid and when you confront John about this, he says that he got busy and he totally forgot – it just slipped his mind.
Two Questions to test for Misconduct
In order to determine the appropriate action to take in this situation, you need to answer two simple questions. If you answer both of those questions in the affirmative, then you are dealing with an incident of misconduct and you would need to take appropriate disciplinary action, instead of some kind of performance management and improvement initiative.
Did an act or omission occur?
In this instance, John has omitted to submit the annual EE report, so you can answer this question in the affirmative.
Is there any form of blameworthiness – either intentional or negligent?
The question here is whether John can be held responsible for his actions in any way. We have no evidence that he intentionally did not submit the report, but his actions may have been as a result of negligence.
The legal test for negligence, is to ask yourself ‘would a reasonable person, given the same circumstances, have acted differently?’
If your answer is ‘yes’ then you are dealing with negligence.
So, in this case, would it have been reasonable to have expected of John – someone with 10 years’ HR experience – to know when EE reports are due and to take action to ensure that your report was completed and submitted on time?
Definitely! This is not merely a little ‘mistake’ or human error that should be addressed by means of a relatively informal counselling session, but an act of misconduct that would most likely be addressed in a disciplinary enquiry.
If the misconduct is of a serious nature and you are intending taking formal disciplinary action (such as a disciplinary enquiry) it is extremely important that your charges are framed correctly and it is advisable that you seek assistance from an employment law professional, in ensuring that you have drafted the correct charges.
Everyone makes mistakes in addressing situations at work and in their private lives. They often think that they would have done something differently, had they known better at the time. By asking the two crucial questions herein, you can ensure that you always differentiate between misconduct and performance problems and that you start addressing these serious workplace issues, in the correct manner.