Discipline and Dismissal


Judging by the number of e-mails I receive from employers regarding poor performance, it is obvious that very few employers understand that misconduct and poor performance are handled by two completely different procedures. 

Many employers inform me that due to an employee's poor performance or failure to reach the required standards of performance, the employer has instituted disciplinary proceedings, has issued the employee with three written warnings which resulted in no improvement, and subsequently the employee was dismissed.

The employee, of course, refers a dispute of unfair dismissal to the CCMA or bargaining council, and a punitive award is made against the employer on procedural unfairness. The employer is adamant that they followed a proper procedure, and whilst this may be true if the problem was an act of misconduct, it is certainly not true in allegations of poor performance.

The problem is not that the employer followed an unfair procedure - the problem is that the employer followed the incorrect procedure. Issues of poor performance are not handled by a disciplinary process. A disciplinary process is followed in allegations of misconduct only, and for no other reason.

Matters of poor performance are addressed by a completely different procedure, and in fact there exists two separate procedures in this regard - namely one procedure for handling poor performance based on ill-health or injury, and another procedure for handling poor performance caused by factors other than ill-health or injury.

Employers need to acquaint themselves fully with the available disciplinary procedures for misconduct and poor performance procedures for correctly addressing those issues. The importance of gaining such knowledge is obvious when one hears of instances where one particularly employer continued a counseling process with a poorly performing employee for 4 years before finally dismissing the employee.

One can only guess at what such a process actually cost the employer in terms of time, money, loss  of production, frustration and so on.

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