Poor Performance or Misconduct

By Johan Botes, Partner and head of the employment practice at global law firm, Baker & McKenzie, Johannesburg


Employers are often confronted with the dilemma of deciphering an employee’s failure to perform in accordance with expectation or instructions. Is the employee incapable of performing the tasks or not willing to do so? The answer to this question is critical as it will determine the process to be used to remedy the problem.


Employment law draws a distinction between an employee’s lack of ability or skills, on the one hand, or lack of care, diligence or willingness to perform in accordance with expectation. No employer is expected to tolerate an employee who is unable to do the basic job for which he or she was hired. However, selecting the appropriate road leading to the fair termination of employment is important.


Poor performance as a form of incapacity

Employees who are genuinely unable to perform their appointed tasks are treated differently in law to those employees who are able to do their work, but for other reasons don’t perform. Considering the inexact nature of recruitment processes, it is not uncommon for employers to realise that the applicant that so impressed during the interview process turned out to be all icing and no cake in the kitchen that is the modern workplace.


Our law allows such employers to go through an abridged process to terminate the services of probationary employees who cannot deliver on the promise shown during recruitment. This, paradoxically, encourages employment as employers can take comfort knowing that they will be tested against a lower standard when dismissing probationary employees for poor performance. It allows employers the latitude to take chance on a new recruit, knowing that the business need not jump though all the same hoops prior to dismissal for performance that it is required to do in the case of non-probationary (or permanent) employees.


The process preceding termination for performance is one of counselling, seeking to understand the causes for poor performance, ensuring that the employee understands the performance targets and measures, setting periods for measuring required improvement and providing reasonable assistance, where required.



Where incapacity suggests an inability to perform, misconduct relates to fault on the part of the employee in not adhering to rules, standard or instructions. In classical examples, the distinction is drawn between an inept employee who spends hours on end, making best effort to comply with an instruction (say to turn in a report), versus the employee who is capable of drafting the report, but then intentionally or negligently fails to do so.


On the one hand the incapable employee is not at fault for his inability to turn in the report – he lacks the skills to draft it or comprehend what is required. His situation is remedied through performance counselling but can still lead to his termination unless he remedies his performance gaps. The other employee, though, is committing misconduct in that whilst he can perform he disregards the instruction or fails to pay sufficient attention or care to ensure that it is carried out. His failure is misconduct and is remedied through disciplinary action.


Blurred lines…

The recent labour court judgment in Pienaar v Murray & Roberts Projects (Pty) Ltd. serves to show that in the real world it is often difficult to draw the line between performance incapacity and misconduct. The employee, a senior member of staff, failed to deliver on key requirements of his role. The employer addressed that with him and gave him specific tasks and deadlines for completion. The employee failed to comply with the deadlines and belatedly provided feedback that was not satisfactory to the employer. Having previously issued him with a final written warning for his failure to follow instruction, the employer dismissed the employee for failing to exercise care or attention in performance of required tasks.


At the employment tribunal the arbitrator upheld the employee’s dismissal. The latter referred a dispute to the labour court seeking to review and set aside the arbitration award. The court dismissed his application and upheld the tribunal’s finding. Judge Jele stated the following in dismissing the employee’s application:


“A repeated failure to comply with instructions by a senior person is serious misconduct. [The manager] testified about frustrations experienced by the executive and an embarrassment to its client. Hiding behind an inefficient senior line manager when clear instructions had been given to rescue the situation cannot assist [the employee].”


Lessons to be learnt

Employers should consider the underlying reason for an employee’s failure to perform. If the unsatisfactory job performance is due to a true lack of ability, the matter should be addressed through the incapacity performance management process. Where the employee has shown in the past or can otherwise be seen to be performing in accordance with requirements, but just lack the will to do so, his behaviour should be addressed through the disciplinary process.


Where the chef constantly fails to bake the prize-winning macarons required, the bakery should investigate the cause of his failure. If it turns out that he does not understand the subtle art involved in making these delicacies, some guidance from an expert or even attendance at a course may remedy the problem. However, if he sometimes produces great bakes but on other occasions could not be bothered to weigh the ingredients properly, or ensure the oven heat is reduced to the correct temperature, despite being instructed to do so, his conduct should be addressed as a disciplinary infringement.


In both instances the chef could face dismissal. Determining the underlying reason could make the difference between successfully defending the dismissal or being ordered to take the chef back into kitchen.


For more information kindly contact Johan Botes at






The Protection of Personal Information

By Jan du Toit, Senior Consultant, SA Labour Guide


After more than seven years in the making, President Ramaphosa announced last year an effective date of 1 July 2020 for the Protection of Personal Information Act (POPI), Act 4 of 2013. “Responsible Parties” only have approximately 5 months left until 30 June 2021 to become compliant in full.


The duration of a typical POPI compliance project will differ from one business to another depending on the nature and size of the business, as well as the Personal Information processed by a Responsible Party. Business owners are therefore advised to, without delay, embark on a compliance project to meet the deadline.


Even though the Protection of Personal Information Act is welcomed by most, it has been long overdue and will require business owners (“Responsible Parties” in terms of the Act) to process Personal Information according to 8 processing conditions as set out in the Act.


The purpose of the Protection of Personal Information Act is in essence found in the title of the Act; to protect the Personal Information of “Data Subjects”. It gives effect to ones right to privacy as enshrined in the Constitution but also provides balance in terms of the right to privacy weighed up against the right to access to information.


The Act regulates the manner in which Personal Information must be processed and provides protection and recourse to those whose rights are infringed. Further to this, the Act makes provision for the establishment of an Information Regulator. Advocate, Pansy Tlakula has already been appointed as the Information Regulator a couple of years ago and has done a great deal of work in establishing her office.


Before I get into more detail about the eight processing conditions, it is important to note that the Act is “definitions driven”. It is therefore of utmost importance to first highlight some of the definitions found in the Act for readers to better understand the eight processing conditions.


The first definition is that of “Personal Information”. Personal Information is widely defined in the Act and includes, but is not limited to, information relating to an identifiable living natural person or a juristic person (“Data Subjects”), such as:

  • Race, gender, sex, pregnancy, marital status, nationality, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, believe, culture, language, birth

  • History - education, medical, financial, criminal, employment

  • Identifiers – number, symbols, e-mail address, physical address, telephone numbers, location, online ID or other assignment to a person such as a unique identifier (in example a student or patient number)

  • Biometric information – physical or psychological behavioural characterization, blood type, fingerprints, DNA analysis, retinal scanning, voice recognition

  • Personal opinion views or preferences

  • Correspondence implicitly or explicitly of a private and confidential nature

  • Views or opinions of another individual\

  • The name of the person with other information or the name alone


The second definition of importance is that of “processing”. The processing of Personal Information includes but is not limited to any operation/activity or any set of operations, whether automated or not, concerning Personal Information. It includes:

  • Collection / receipt / recording / organizing / collation / storage / updating / modification / retrieval / alteration of Personal Information

  • Dissemination by means of transmission distribution or making available to others.

  • Merging / linking / restricting / degradation / erasure / destruction of Personal Information.


A Responsible Party can either be a public body, private body or any other person or persons, domiciled in South Africa and that determines the purpose and means for processing of Personal Information.


Throughout the entire lifecycle of Personal Information in any business, eight processing conditions must be adhered to. The eight processing conditions are summarized below:


Condition 1 – Accountability. The Responsible Party must always ensure that the conditions set out in Chapter 3 of the Act and all the associated measures are complied with.


Condition 2 – Personal Information must be collected and processed lawfully in a reasonable manner that does not infringe the privacy of a Data Subject. The Personal Information may only be processed if it is adequate, relevant, and not excessive.
Personal Information may only be processed if the Data Subject consented thereto. Alternatively, where it is necessary to do so for the conclusion or performance of a contract, an obligation in terms of law, to protect the legitimate interest of the Data Subject, or to pursue a legitimate interest of the Responsible Party.


A further requirement is that the Personal Information must be collected directly from the Data Subject.


Condition 3 requires that Personal Information must be collected for a specific explicitly defined and lawful purpose related to a function or activity of the Responsible Party. Such Personal Information may not be retained any longer than necessary for achieving the purposes for which the information was collected and/or subsequently processed.


Condition 4 prohibits the further processing of Personal Information unless such processing is compatible with the initial purpose of collecting the information.


Condition 5 requires that Responsible Parties must take reasonable, practicable steps to ensure that Personal Information is complete, accurate, and not misleading. Such Personal Information must also be kept up to date, taking into consideration the purpose of the Personal Information.


The nature and purpose of the Personal Information will dictate as to how often such Personal Information must be updated.


Condition 6 addresses some of the rights of Data Subjects, such as the right to be informed by the Responsible Party before information is collected. The purpose of collecting and from where Personal Information will be collected must be disclosed to the Data Subject.


A Data Subject is entitled to the details of the Responsible Party and to be made aware of the consequences of not making Personal Information available to the Responsible Party.


Should it be required that Personal Information be collected and processed in terms of legislation, the Data Subject must be made aware accordingly.


As per Section 72 of the Act, the Data Subject must be advised if Personal Information will be transferred across the borders of South Africa. Under such circumstances the Data Subject is entitled to first be made aware of legislation in other countries that provides adequate protection of the Personal Information. In the absence of legislation, whether there are any binding corporate rules in place, alternatively a written agreement that offers adequate protection for the Data Subject, concluded between the Responsible Party and he third party.


Condition 7 requires that Responsible Parties must secure the integrity and confidentiality of Personal Information by taking appropriate reasonable, technical and organisational measures, to prevent loss or unlawful access of Personal Information under the control of a Responsible Party.


In this regard the Responsible Party is required to identify all reasonable and foreseeable internal and external risks, and to establish and maintain appropriate safeguards. Compliance with such safeguards must be regularly audited and measures updated if so required.


Condition 8 deals with the rights of Data Subjects and participation. In terms of condition 8, Data Subjects have the right to establish whether Personal Information is held by a Responsible Party and to have it corrected or destroyed if it is inaccurate, irrelevant, excessive, out of date, incomplete, misleading, or have been obtained unlawfully.


Responsible Parties are also further required to introduce Data Subject rights and participation in their PAIA (Promotion of Access to Information Act) manuals.


Responsible Parties are also not permitted to send direct marketing material to Data Subjects without their written consent as per from 4 four of the regulations of the Act.


Other important considerations in terms of the Act are that a Responsible Party may be issued with an administrative fine of up to R10 million for its non-compliance with the Act. Additionally, Data Subjects have the right to sue Responsible Parties and under specific circumstances, the Information Officer of the Responsible Party may be imprisoned.


Each Responsible Party must register an Information Officer (the head of the organization or a person acting in such capacity) with the Information Regulator. The Information Officer may appoint deputies to assist with ensuring compliance within the business.


From the above, it is evident that a POPIA compliance project is not something that should be undertaken without a solid understanding of the Act.


Our subscribers, a.k.a. “Responsible Parties”, are invited to attend our online POPIA presentations to better understand the Act and to ensure compliance. In-house training can also be arranged on request.


The author of this article is also available to assist employers with compliance projects in the form of awareness sessions, gap analysis, policy development / implementation and staff awareness.


For further information pertaining to training, readers are invited to visit www.labourguide.co.za or to contact Jan du Toit at .






Courses and Workshops




Strategic Human Resources Management (HRM) and - Business Partnering

14, 15 & 16 April 2021 (08:30 - 16:00)

Interactive Online Course

Employment Equity Committee Training

14 April 2021 (09:00 - 16:00)

Interactive Online Course

COVID-19 Workplace Compliance Health, Safety and Claims Management Course

21 & 22 April 2021 (08:30 - 13:00)

Interactive Online Course

POPIA: Protection of Personal Information Act

15 April 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

14 May 2021 (09:00 - 12:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

16 April 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

20 May 2021 (09:00 - 12:00)

Interactive Online Course

Management and Leadership Skills

21, 22 & 23 April 2021 (08:30 - 16:00)

Interactive Online Course

Managing Day to Day Issues/ Problem Employees Full day workshop

22 April 2021 (09:00 - 16:00)

Interactive Online Course

Workshop Chairing Disciplinary Hearings

06 & 07 May 2021 (09:00 - 16:00)

Interactive Online Course

Health and Safety Representative and Committee Training Course

06 May 2021 (08:30 - 16:00)

Interactive Online Course

AARTO and the Impact on Your Business

07 May 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

21 May 2021 (09:00 - 12:00)

Interactive Online Course

Civil and Commercial Mediation Training

03 to 07 May 2021 (09:00 - 17:00) 

10 to 12 May 2021 (09:00 - 18:00)

8 Day Practical Training

Interactive Online Course

Basic Labour Relations

13 May 2021 (09:00 - 16:00)

Interactive Online Course

The OHS Act and the Responsibilities of Management

13 May 2021 (08:30 – 16:00)

Interactive Online Course


 Our Clients 


Android App On Google Play

Android App On Google Play