Schedule 8 of the Labour Relations Act makes provision for employers to dismiss employees under certain circumstances. Employers may address and dismiss employees for conduct, capacity or operational requirements.

Schedule 8 states that a dismissal must be for a fair reason after following a fair procedure, a concept that many employers fail to completely understand. Although all three mentioned reasons for ending the employment relationship will have the same end result, different processes must be followed prior to dismissing the employee. A dismissed employee may challenge his / her dismissal arguing that it was either substantively unfair, procedurally unfair or both, therefore it is very important to follow the correct procedure, as there are different approaches to discipline from a misconduct and Incapacity: work performance perspective.

So how to distinguish between Misconduct and Poor Performance?

Misconduct can be best described as the employee’s failure to adhere to the rules and policies of the employer during working hours and sometimes even after hours. Such behaviour is normally deliberate, or an employee’s failure to take the required care. Some common forms of misconduct are: Theft, fraud, assault, dishonesty, negligence, insubordination, absence without permission from work, poor timekeeping, refusing to work etc…

Employers should note that Schedule 8 further recommends that employees are not dismissed for the first act of misconduct unless serious enough to warrant a dismissal, progressive discipline should be guided the disciplinary code of the employer, which will ensure the consistently in the application of discipline.  Forms of discipline will include informal counselling’s, verbal warnings, written warnings, final written warnings and an enquiry which may lead to dismissal for more serious offences or persistent offenders.

Incapacity: Poor Performance on the other hand relates to the work performance of the employee. In other words, the employee has failed to reach the agreed quantity or quality (or both) over an agreed period. A good example would be a Sales Representative that fails to achieve the agreed monthly sales targets.

Schedule 8 provides guidelines in cases of dismissal for poor work performance. Any person determining whether a dismissal for poor work performance is unfair should consider

• whether or not the employee failed to meet a performance standard; and
•  if the employee did not meet a required performance standard whether or not
• the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;
• the employee was given a fair opportunity to meet the required performance standard, reasonable training was given to improve the employee skills and
• the dismissal was an appropriate sanction for not meeting the required performance standard.

It is crucial to follow correct procedure, even though there may have been very good reasons to dismiss the employee (substantive fairness), if the employer failed to follow a fair procedure prior to dismissing the employee (procedural unfairness), compensation may be awarded to the dismissed employee.