Poor Performance vs Misconduct: The Distinction That Saves Employers
Ask a commissioner to name the employer error they see most and this is it: the employee was dismissed for poor performance using the misconduct playbook — a couple of warning letters, a hearing, out. The LRA’s Code of Good Practice treats poor performance as incapacity, and incapacity demands support before sanction. This guide draws the line between the two, walks the correct incapacity process, and covers probation.
- ✔Cannot (poor performance) is not will not (misconduct) — different law, different process.
- ✔The incapacity process: standards, evaluation, support, reasonable time, then alternatives.
- ✔A performance improvement plan with real support is the core document.
- ✔Dismissal for poor performance needs evidence of the support given, not just failures.
- ✔Probation has its own rules — more latitude, but never a free pass.
The poor performance test: cannot versus will not
The diagnostic question is simple: is the employee failing despite trying, or choosing not to comply? The salesperson who misses targets while working every lead is an incapacity case. The one who refuses to make calls is a misconduct case. The first needs development; the second needs discipline — and the process that fixes one is legally wrong for the other.
| Poor performance (incapacity) | Misconduct | |
|---|---|---|
| Nature | Cannot meet the standard | Will not follow the rules |
| Examples | Missed targets, slow work, errors despite effort | Refusing instructions, lateness, dishonesty |
| First response | Counselling, training, guidance | Progressive warnings |
| Core document | Performance improvement plan | Warning record |
| Dismissal requires | Failed improvement after support + alternatives considered | Fair hearing + proportionate sanction |
Carelessness from a capable employee who will not focus is misconduct; the same errors from someone working at their limit is incapacity. Same behaviour, different process — the investigation must come before the label.
The incapacity process: support before sanction
Probation: more latitude, not a free pass
The Code gives probation its own rules: a reasonable probation period (three to six months is common), during which performance is assessed with even more support and latitude than usual. Dismissal for poor performance during or at the end of probation is easier — but still requires evaluation, guidance, a chance to improve, and a process the employee can respond to. The full rules are in probation period rules.
What probation is not: a window to dismiss for any reason without process. Probationary employees are protected against unfair dismissal from day one — and against automatically unfair reasons (pregnancy, union membership) completely. Extending probation is allowed with good reason and proper process — usually to complete an improvement plan already underway.
Ill health and injury: incapacity's second branch
When the performance problem is medical, the process shifts from improvement to investigation and accommodation: current medical evidence, what the employee can and cannot do, whether lighter duties or adjustments would keep them working, and how long the incapacity is likely to last. Dismissal for incapacity through ill health is fair only where no reasonable accommodation exists and the incapacity endures.
Handle these cases slowly and kindly — they carry disability-discrimination risk alongside the dismissal risk, and the leave entitlements in sick leave rules run underneath everything. The complete discipline framework is in the discipline and dismissal pillar.
- CCMA — incapacity and poor performance
- Labour Relations Act 66 of 1995
- Department of Employment & Labour
Always confirm current requirements with the official source — rules and deadlines change.
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Frequently asked questions
Can I dismiss someone for poor performance without warnings?
Warnings are the wrong tool entirely — poor performance is incapacity. What you need is evidence of support: clear standards, counselling, training, an improvement plan, reasonable time to improve, and consideration of alternatives. Dismissal follows failed support, not failed warnings.
How long must a performance improvement plan run?
Long enough to be reasonable for the role — weeks for simple jobs, several months for senior or complex ones. The plan should state the measurable goals, the support offered and the review date.
Can I dismiss during probation?
More easily than after confirmation, but never freely. The Code requires evaluation, guidance, a chance to improve, and a process the employee can respond to — even during probation. Automatically unfair reasons remain prohibited entirely.
What if poor performance is caused by illness?
Then it is ill-health incapacity: investigate the medical position, explore accommodation and adjusted duties, and dismiss only where no reasonable accommodation exists and the incapacity is lasting. Disability discrimination rules apply throughout.
Last reviewed: July 2026 · How we research our guides
EmployerGuide.online provides general information about South African employer obligations — not legal, tax or professional advice for your specific situation. Laws, rates and deadlines change; confirm current requirements with the official sources linked above, or ask Admin Boss. See our disclaimer.