Page 28 - Business Sense-11.4 - KZN Top Business Awards Supplement -EBOOK

THE DIFFERENCE BETWEEN MISCONDUCT

AND PERFORMANCE

Colette Tanner, In the context of employment,
Operations Director, this means that the employer
DRG should not take disciplinary
action in the absence of a fair
W hen adequate notice of a disciplinary
hearing. A fair process includes
enquiry, and the employee must
employee issues be aware of the precise reason
or charges. The employee has
arise, it can the right to defend himself or
become herself. Implicit in this right is
confusing that the employer must conduct
for the an investigation into the alleged
employer misconduct, the employee must
when be given the opportunity to
determining be heard and the employee is
whether an issue relates to entitled to representation and
performance or misconduct. call witnesses.
Furthermore, executing
corrective action can be overly Each case must be judged on
rigorous and daunting. its merits, ensuring that the
sanction is appropriate to the
Misconduct is typically the
most frequent issues that specific circumstances.
employers deal with on a daily Robust Policy Handbook
basis. Misconduct relates understanding the barriers that Labour Relations Act, specifically 5. Whether dismissal is the
to the breaking of a valid exist that prevent the employee Schedule 8, endorses this concept, appropriate sanction for the Pivotal to managing
and reasonable rule, where from meeting the required emphasizing corrective discipline contravention of the rule misconduct in the workplace
behaviours or actions infringe on standard. Poor performance over punitive measures. is a robust policy handbook
accepted norms in the workplace can be managed through a The progressive discipline Where it is found that the which will guide employees
for example violations relating performance improvement system is designed to be employee did contravene a valid on the expected behaviour
to company policies, regulations, programme (PIP). Where the corrective, however, there are and reasonable rule, which the and consequences of non-
professional standards, and employee fails in the duty to exceptions where dismissal employee was aware of, which compliance. It imperative that
ethical norms. Misconduct perform, the employee is said to is justified. The progressive had previously been, and still employers act on misconduct,
disrupts the workplace and can be incapable, and the employer and corrective approach is is applied consistently, it is the adage that justice delayed is
carrying grave consequences for has the right to dismiss after appropriate for minor offenses possible that the employee is justice denied applies to labour
both employee and employer. following a fair procedure and for example tardiness. An guilty of misconduct. law in the sense that employers
It is therefore best practise ensuring that the dismissal is for employer would not dismiss that act too slowly can be found
to clearly communicate the a fair reason. an employee for reporting A Balance Of Probabilities to be diluting the seriousness of
company’s position on what is late for duty as a first offence. It is commonplace that in the offence. Legal and procedural
regarded as acceptable behaviour A Structured System According to the Code of Good disciplinary proceedings, the approaches to address these
through company polies and Misconduct leads to Practice: Dismissal in the employer bears the onus to prove issues differ significantly.
company values. disciplinary action, which must Labour Relations Act, dismissal its allegations against an employee Misconduct typically leads to
Performance on the other be commensurate with the for a first offence is appropriate on a balance of probabilities. This disciplinary action, which may
include warning, suspension, or
hand does not relate to conduct, offence. This is the measure for if the misconduct is severe and standard must be differentiated termination. Poor performance
behaviour or actions however substantive fairness. Employers renders the continuation of from the standard applied in requires a performance
is concerned with whether the typically communicate a schedule the employment relationship criminal cases, namely proof management process, which
employee is performing against of offences to their employees or broken and or intolerable. beyond a reasonable doubt. An focusses on identifying the
the expectations or standard code of conduct in the company Examples of such misconduct employer is not required to prove root cause of a problem,
set out by the employer. Poor handbook. The schedule of include dishonesty, harassment, that the misconduct is beyond a providing support, training,
work performance refers to offences classifies workplace or intimidation. reasonable doubt – i.e. that if any and setting clear expectation
the failure or inability of the misconduct into two categories Disciplinary action must reasonable doubt or possibility of for improvement. Dismissal for
employee to reach and maintain minor and gross misconduct be fair, the LRA has set out any other explanation exists as to poor performance should only
the employer’s required work and provides the employee with guidelines in order to establish the employee’s guilt, the employee be considered after a fair and
performance standards in terms the outcome of actions that whether a dismissal for cannot be found guilty. The thorough process of performance
of output. This can become violate workplace rules. It is best misconduct is substantively fair, version presented by the employer management has been followed.
apparent in many ways, such practise to adopt a progressive it stands to reason that prior to to substantiate the allegations of
as consistently failing to meet and corrective approach to the employer taking disciplinary misconduct, must be found on This summary provides a
agreed targets, or demonstrating disciplining employees, where action, grounds for disciplinary the whole to be more probable or broad overview of misconduct
a lack of required skills and appropriate. Minor offences action must be established. The likely than that of the employee. and poor performance in
competencies. It is implicit in all relate to for example absence following questions must be In addition to substantive the workplace. Employers
employment contracts that the in the workplaces where, gross answered in the affirmative prior fairness, the employee must be struggling with substantive and
employee undertakes to perform misconduct refers to serious to deeming a dismissal fair: taken through a fair process, procedural uncertainties should
according to the reasonable, violations, such as fraud, most significant are enshrined in gain legal guidance from HR
lawful, and attainable work physical violence, harassment, 1. Whether a rule regulating the maxim ‘audi alteram partem’ due process professionals. 
performance standards required or significant breaches of conduct in the workplace which means ‘hear the other
by the employer. confidentiality. Gross misconduct existed, the rule was side’. The principles of Natural For more information please contact
often leads to dismissal. contravened by the employee
Managing poor performance Justice are fundamental legal Colette Tanner,
is a corrective action taken Progressive discipline is a 2. Whether the rule was valid doctrines ensuring fairness, T: +27 (0)31 767 0625
by the employer to support structured system of addressing and reasonable impartiality, and reasoned E: colette@drg.co.za
the employee in bridging the employee misconduct, where 3. Whether the employee was decision-making in judicial and W: www.drg.co.za
performance gaps. This process the severity of the penalties aware of the rule, or could administrative proceedings.
includes identifying the cause increases with repeated violations. reasonably be expected to Rooted in moral principles and
of performance gaps, meeting This method aims to correct have been aware of the rule common law traditions, they
regularly with the employee to behaviour through a progressive 4. Whether the rule has been protect employee from arbitrary
monitor and provide feedback on approach, rather than resorting applied consistently by the actions by requiring due
the employee’s performance and to a first offence dismissal. The employer process in decision-making.

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