Before disciplining an employee, it is essential for an employer to determine whether the issue is something that can be the subject of disciplinary action.

In the eyes of the law, there is a difference between an employee :

1) who is capable of doing the job for which they are employed, but they don’t do that job

( in labour law terms referred to as “conduct”  or “misconduct”),


2) an employee that is incapable of doing the job for which they are employed,

( in labour law terms referred to as “capacity” or “poor performance” ).

Identifying the correct category is all-important, as completely different processes and procedures apply to each category.

If you pick the wrong category, and even if you follow that wrong category’s processes to the letter of the law, your actions will still be found to be unfair, and you could end up paying as much as 12 month’s salary for picking that wrong category.

Disciplinary steps may be taken in regard to conduct, but not in regard to capacity.

The real difficulty lies in the fact that conduct and capacity often overlap and the lines between the two become easily blurred, which in turn means that the wrong category is often chosen, the wrong processes followed, and the wrong action taken.

The ease with which these lines are blurred was demonstrated in the matter of Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others (2014) 35 ILJ 943 (LAC).

The facts of the case were briefly as follows:

The employee’s functions included taking measurements of ore samples for testing in a laboratory. The accuracy of the measurements was crucial because the employer would decide whether to mine a particular area based on the measurements taken.

The employee’s measurements turned out to not be accurate and he was charged with gross neglect of duties and failure to work according to the applicable standards.

He was found guilty and was dismissed.

At the CCMA arbitration, the commissioner found that what was at issue was the employee’s poor performance; that dismissal was too harsh because his conduct could be ‘corrected and improved’ and the employee had to be reinstated by the employer.

As the employer was dissatisfied with this outcome, the matter was taken on review to the Labour Court. The Labour Court found that although the CCMA had incorrectly categorized the employee’s conduct as poor performance instead of misconduct, the arbitration award should not be overturned.

The matter was then taken on appeal to the Labour Appeal Court ( LAC ).

The LAC found that the commissioner had concluded that the employee’s dismissal was based on poor performance and not misconduct; that poor performance and misconduct are distinct concepts, and the requirements to show that a dismissal for misconduct is fair are different to what has to be shown in the case of dismissal for incapacity.

The LAC found that the issue was indeed that of misconduct and not poor performance (as had been found by the commissioner) and that the employee had committed a serious misconduct. The LAC thus reviewed and set aside the award and replaced the award with an order that the dismissal of the employee was fair, which was some 4 years ( and many anxious sleepless nights) after the employee had been dismissed.

As noted by the LAC, “conduct” and “poor performance” are different concepts and each has its own processes and procedures that need to be followed for actions to be regarded as fair. Don’t expect to see Table Mountain in Cape Town if you chose to follow the highway to Durban.

It is vital that the correct categorization takes place, and that guidance from an expert in labour law should be obtained when deciding on the category, or in determining whether the correct category was chosen.