THE DEVIL LIES IN THE DETAIL

Introduction

The justification and process for the termination of an employee’s services for misconduct on the one hand and poor performance on the other is diverse. In both instances the Labour Relations Act 66 of 1995 (LRA) provides for certain procedures in terms of its Code of Good Practice: Dismissal (the Code) by distinguishing between misconduct and poor performance/incapacity.

The distinction is not new. In fact, the Labour Appeal Court (LAC) addressed this conundrum in Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others(2014) 35 ILJ 943 (LAC). (Hereinafter referred to as Gold Fields). The LAC held that ‘… Poor work performance and misconduct are by definition two distinct and diverse concepts…’ (Paragraph 22)

You do have the right not be unfairly dismissed in terms of section 185 of the LRA, be that as a result of performance or conduct. Dismissal however, on its own, is not by default unfair. In terms of the Code, item 2, a dismissal must be effected for a fair reason and in accordance with a fair procedure.

Let’s unpack the processes provided for in addressing and determining misconduct or poor performance:

• Misconduct

The guideline provided in item 7 of the Code requires the following considerations:

1. Is there a workplace rule or standard?
2. Did the employee contravened the workplace rule or standard?

Once the existence of a workplace rule and the contravention thereof has been established, the following questions must be considered?

• Was the rule or standard valid and reasonable?
• Was the employee aware, or could the employer reasonable expect the employee to be aware, of the rule or standard?
• Was the rule or standard consistently applied by the employer in the past?
• Was dismissal appropriate for the contravention of the rule or standard?

The determining factor in any misconduct investigation is whether a workplace rule or standard has been breached. In simple terms, as held by the Labour Court in ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman No and Others (2013) 34 ILJ 2347 (LC), the question should be asked: ‘Could the employee do it, but did not?’ If the question is answered in the affirmative, it is misconduct. It is then evident that you are fully able to do what is required, but failed to do so as a result of indifference, wilfulness or a failure to take care. (Paragraph 78)

• Poor Work Performance

The guideline provided in item 9 of the Code requires the following considerations:

1. Did the employee fail to meet a performance standard?

Once the existence of a performance standard and failure to meet that standard has been established, the following questions must be considered?

• Was the employee aware, or could it reasonably be expected that the employee was aware, of the required performance standard?
• Was the employee afforded a fair opportunity to meet the required performance standard?
• Was dismissal appropriate for failing to reach the required performance standard?

Failure to reach the required performance standard should not by default result in immediate dismissal. There is an onus on your employer to assist you through counselling or training. The employer may warn you through warning letters of the possible outcome should you not reach the required performance standard.

Again, with reference to ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman No and Others (2013) 34 ILJ 2347 (LC), a different question should be asked: ‘Did the employee try but could not?’ If the question is answered in the affirmative, it must be poor performance. When an employee ‘honestly (for the want of a better word) seeks to achieve what is expected of him or her but is unable to do so is incapacitated and would not behave wilfully or indifferently or fail to apply the necessary care.’ (Paragraph 78)

Determining the process

The employer must ultimately decide on the process that he/she wishes to follow when dissatisfied with the behaviour of an employee, be that performance or misconduct. This principle was reinforced by the Labour Appeal Court in Gold Fields. In this case, the employer aggrieved by the outcome of the arbitration as well as the review process applied for leave to appeal the outcome to the Labour Appeal Court.

In summary Gold Fields dismissed a Senior Sampler for serious neglect of duty. The arbitrator during the arbitration proceedings held that the employer should have followed the poor performance process and found the dismissal to be unfair. The Labour Court confirmed that the arbitrator’s finding was correct and that it was immaterial and not unreasonable for the arbitrator to ‘miscategorise’ the employee’s conduct as poor performance and not misconduct.

The Labour Appeal Court held a different view, overturning both the Labour Court’s judgment as well as the arbitration award. It was confirmed that an employer bears the onus to decide on the process to follow. Once the process is identified, i.e. misconduct or poor performance, the employee must show that a proper and fair process was followed in terms of the guidelines provided in the Code.

An example of where an employer got it wrong

In the case of AMCU obo Mngangwa and Other v Furniture Perfection – 2021 30 CCMA 7.17.3 the employees, employed within the production area as operators, were tasked to meet a weekly target in the production of headboards. The employer investigated the reason for the employees not meeting their weekly production target and fitted CCTV cameras in the production area.

The employer then claimed that the CCTV camera video footage show that the employees were ‘sleeping on duty or loafing’. The employer had elected to proceed with the misconduct process and charged the employees with dereliction of duty and they were subsequently dismissed. During the arbitration proceedings at the CCMA, the arbitrator found the video footage to be unclear and of poor quality. The employer furthermore failed to prove the authenticity of the CCTV footage. In response, the employees denied that they were sleeping, claiming that they were only resting as there was no work for them to do.

The commissioner issued an arbitration award in favour of the employees, they were reinstated with 12 months back pay. The conduct of the employees in not reaching their targets could have been addressed via the poor performance guidelines. Following these guidelines provided by the Code would have resulted in progressive discipline and reiterating the required standard.

Conclusion

The Code in distinguishing between dismissal for misconduct and dismissal for poor work performance provide opportunities to correct behaviour. When you receive notice of an enquiry, be that performance or misconduct, evaluate your own behaviour. Ask yourself whether your conduct is as a result of ‘I’ve tried, but I could not’ or ‘I could, but I did not’.  This will determine the process that should be followed and the aspects that you have to answer to. The process followed by your employer might result in a dismissal that might have been unfair.

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(Article by Michael Buitendag & Tiekie Mocke)

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