Misconduct vs. incapacity: understanding the difference

Misconduct is a deliberate or negligent act — the employee can perform but chooses not to follow rules or instructions. Incapacity is the inability to perform — the employee is trying but cannot meet the required standard.

The Code of Good Practice: Dismissal (Schedule 8 of the LRA) treats these separately. Dismissing a poor performer through a disciplinary process designed for misconduct is procedurally unfair.

The performance improvement process

Before any dismissal for poor performance, the employer must follow an incapacity process. This involves: clearly communicating performance standards, identifying the specific performance gaps, providing support, training, and resources to help the employee improve, setting a reasonable improvement period (a Performance Improvement Plan or PIP), monitoring and reviewing performance during the PIP period, and only proceeding to a formal incapacity inquiry if performance has not improved after reasonable opportunity.

The incapacity inquiry

If the employee has not improved after a genuine PIP process, the employer may convene a formal incapacity inquiry. This is similar to a disciplinary hearing in structure, but the question is not 'did the employee do something wrong?' — it is 'can this employee meet the required standard, and if not, is there any reasonable accommodation or alternative?'

The employee must be given the opportunity to respond and to be represented. The employer must consider whether there is a suitable alternative position before proceeding to dismissal.

Documentation is everything

At the CCMA, you will need to show: what the required performance standard was and that the employee knew it, what the actual performance was and how it was measured, what support and opportunity was provided, that the employee was warned that dismissal could result from continued poor performance, and that the process was followed consistently.

Without this documentation, you are defending yourself on memory alone — against an applicant who has no obligation to prove anything beyond that they were dismissed.

How long must a PIP run?

There is no fixed statutory timeframe. The reasonableness of the PIP period depends on the nature of the role, the complexity of the performance issue, and how long the employee has been in the role. A one-week PIP for a skilled professional is unlikely to be seen as reasonable. A 90-day PIP with monthly check-ins is a solid baseline for most roles.