Published by Devhulon Business & People Solutions

One of the most common mistakes employers make when managing employees is treating poor performance and misconduct as the same problem.

They are not.

An employee who deliberately refuses to follow a reasonable workplace instruction is dealing with a different employment issue from an employee who genuinely tries to perform their job but cannot consistently meet the required standard.

The distinction matters because the appropriate HR process can be different.

Using a disciplinary process to address what is actually a performance problem can create unnecessary risk for an employer. Likewise, treating deliberate misconduct as merely a performance problem may result in an employer failing to address serious workplace behaviour appropriately.

This article explains the difference between misconduct and poor performance and provides a practical framework for South African employers.

What Is Misconduct?

Misconduct generally involves an employee breaching a workplace rule, standard, policy, instruction or expected standard of behaviour.

The key issue is usually the employee’s conduct.

Examples may include:

• Unauthorised absence from work
• Repeated lateness
• Refusal to follow a reasonable instruction
• Dishonesty
• Theft
• Fraud
• Intimidation
• Fighting in the workplace
• Serious insubordination
• Unauthorised use of company property
• Breaching workplace policies
• Failing to follow established safety procedures

The employer’s concern is essentially:

“The employee knew, or should reasonably have known, what was expected, but breached the applicable rule or standard.”

Where misconduct is alleged, the employer may need to follow an appropriate disciplinary process.

 

What Is Poor Performance?

Poor performance is different.

It generally occurs when an employee fails to meet a required performance standard, despite the employer’s expectation that the employee should be capable of meeting that standard.

For example, an employee may:

• Consistently fail to meet reasonable sales targets;
• Produce work containing excessive errors;
• Fail to complete reasonable volumes of work;
• Miss reasonable productivity standards;
• Struggle to meet quality requirements; or
• Fail to perform important aspects of their role at the expected level.

The important question is not necessarily:

“Did the employee break a rule?”

It may instead be:

“Is the employee capable of performing the job to the required standard, and have we given them a fair opportunity and appropriate support to improve?”

That is a fundamentally different question.

 

The Simplest Way to Understand the Difference

A useful practical distinction is:

Misconduct	Poor Performance
Concerns the employee’s behaviour or conduct	Concerns the employee’s ability to meet performance standards
Employee breaches a rule or standard	Employee fails to achieve a required standard
Often involves deliberate or negligent behaviour	May occur despite genuine effort
Usually addressed through discipline	Usually addressed through performance management or incapacity procedures
Focus is on whether a rule was breached	Focus is on whether the employee can meet the required standard
Sanction may be appropriate	Improvement and support are generally important considerations

This table is a useful starting point, but real workplace cases are not always straightforward.

The facts of each case must be considered.

 

Example 1: An Employee Who Is Always Late

Imagine an employee arrives at work 30 to 45 minutes late several times each month.

The employee knows the official starting time.

The employer has communicated the attendance requirements.

The employee has previously been spoken to about punctuality.

The employee continues arriving late without an acceptable explanation.

This may be a misconduct issue because the concern relates to the employee’s failure to comply with a workplace requirement.

Now consider a different situation.

An employee arrives on time every day but consistently fails to complete the required workload.

That may be a performance issue, depending on the circumstances.

The employee’s attendance is not the problem.

The employee’s ability to achieve the required performance standard is.

 

Example 2: Sales Targets

A salesperson is required to achieve a reasonable monthly target.

The employee understands the target and has received appropriate training.

Despite coaching, support and reasonable opportunities to improve, the employee consistently performs below the required standard.

There may be a performance-management issue.

Now imagine the same employee deliberately refuses to contact customers because they do not want to make sales calls.

That may raise a misconduct issue.

The distinction is important:

Unable to perform is not automatically the same as unwilling to perform.

 

Example 3: Errors in Work

An employee makes repeated mistakes in financial reports.

Before deciding that this is misconduct, the employer should investigate the reason for the errors.

Questions may include:

• Was the employee properly trained?
• Are the instructions clear?
• Is the workload reasonable?
• Does the employee understand the procedure?
• Has the employee previously demonstrated competence?
• Has the employee been given feedback?
• Is there an underlying issue affecting performance?
• Is the required standard realistic?

If the employee is genuinely struggling despite reasonable support, the matter may be one of poor performance.

However, if the employee deliberately ignores an established procedure after being trained and instructed to follow it, the circumstances may point towards misconduct.

 

Why the Difference Matters

The distinction is important because the employee should be managed through an appropriate process.

An employer should not automatically issue a disciplinary charge whenever an employee fails to meet a target.

Similarly, an employer should not label deliberate misconduct as poor performance simply because it is easier to manage informally.

The employer needs to understand what is actually going wrong.

 

Managing Poor Performance

When an employee is not meeting the required standard, the employer should first establish whether the performance expectation is reasonable and whether the employee understands it.

A practical performance-management process may include the following.

1. Establish the Required Standard

The employee should understand what satisfactory performance looks like.

The standard may come from:

• The employee’s job description;
• Agreed KPIs;
• Performance agreements;
• Production requirements;
• Quality standards;
• Reasonable management expectations; or
• Established workplace requirements.

The standard should be clear enough for the employee to understand what they need to achieve.

 

2. Identify the Performance Gap

The employer should be able to explain the difference between the required standard and the employee’s actual performance.

For example:

Required: 95% accuracy

Actual: 78% accuracy

This is much more useful than telling an employee:

“Your work is not good enough.”

Specific information gives the employee a meaningful opportunity to understand the problem.

 

3. Determine Why the Employee Is Underperforming

Poor performance can have different causes.

The employee may lack:

• Training;
• Experience;
• Resources;
• Clear instructions;
• Appropriate supervision;
• Technical knowledge; or
• Reasonable support.

There may also be circumstances affecting the employee’s ability to perform.

Management should therefore avoid assuming that poor performance is automatically caused by a lack of effort.

 

4. Give Feedback

Employees should be told when their performance is below the required standard.

Feedback should be:

• Specific;
• Evidence-based;
• Professional;
• Timely; and
• Focused on improvement.

The employee should understand:

1. What is wrong;
2. What standard is expected;
3. What improvement is required;
4. What support will be provided; and
5. When performance will be reviewed again.

 

5. Provide Reasonable Support

Depending on the role and circumstances, support may include:

• Additional training;
• Coaching;
• Mentoring;
• Job aids;
• Clarification of responsibilities;
• Additional supervision;
• Reasonable resources; or
• A structured performance-improvement plan.

The objective is to give the employee a fair opportunity to improve.

 

What Is a Performance Improvement Plan?

A Performance Improvement Plan, commonly called a PIP, is a structured document used to identify performance deficiencies and establish clear improvement expectations.

A useful PIP should explain:

Current performance

What is the employee currently achieving?

Required performance

What standard must be achieved?

Improvement actions

What must the employee do differently?

Employer support

What assistance will management provide?

Review period

When will progress be assessed?

Consequences

What may happen if satisfactory improvement is not achieved?

A PIP should not be used simply as a document to create a paper trail for dismissal.

Its purpose should be to provide a genuine opportunity for improvement.

 

Managing Misconduct

Where the issue is misconduct, the employer should approach the matter through an appropriate disciplinary process.

The employer should establish:

• What rule or standard was allegedly breached;
• Whether the rule was known or reasonably accessible;
• What happened;
• What evidence supports the allegation;
• What explanation the employee provides; and
• What sanction is appropriate if the allegation is established.

The seriousness of the misconduct will influence the appropriate response.

A minor first offence may require corrective discipline.

Serious misconduct may justify a more serious sanction, depending on the circumstances.

 

The “Can’t vs Won’t” Test

A useful management question is:

Is the employee unable to meet the standard, or are they unwilling to meet it?

This is not a complete legal test, but it can help managers identify the nature of the problem.

“Can’t”

The employee wants to perform but is unable to meet the standard.

Possible causes:

• Lack of training;
• Lack of experience;
• Insufficient resources;
• Unclear expectations;
• Inadequate support;
• A capability issue.

This points towards performance management or another appropriate incapacity process, depending on the circumstances.

“Won’t”

The employee understands the requirement but deliberately refuses to comply.

Examples might include:

• Refusing a reasonable instruction;
• Deliberately ignoring procedures;
• Deliberately failing to perform assigned duties;
• Intentionally breaching a workplace rule.

This may point towards misconduct.

However, employers should investigate before reaching a conclusion.

 

What About Negligence?

Negligence can make the distinction more complicated.

Suppose an employee repeatedly fails to follow a procedure and causes financial losses.

The employer should establish why.

Was the employee:

• Not trained?
• Unaware of the procedure?
• Unable to understand it?
• Overloaded?
• Careless?
• Reckless?
• Deliberately ignoring instructions?

The answers may determine whether the matter is primarily one of performance, negligence-related misconduct or another employment issue.

The employer should assess the actual facts rather than applying a label too quickly.

 

Can Poor Performance Lead to Dismissal?

Yes.

Poor performance does not mean an employee can never be dismissed.

However, an employer should not simply jump from:

“You are underperforming”

to:

“You are dismissed.”

Where dismissal is being considered because of poor performance or incapacity, the employer should follow the applicable legal and workplace requirements and give the employee a fair opportunity to respond.

The employer should consider matters such as:

• The employee’s level of competence;
• The required performance standard;
• Whether the standard was communicated;
• The employee’s experience;
• Training provided;
• Support provided;
• Previous performance;
• The extent of the performance problem;
• The employee’s response;
• Reasonable alternatives; and
• Whether the employee had a fair opportunity to improve.

The appropriate process depends on the circumstances.

 

Can Misconduct Be Managed Through Performance Management?

Generally, an employer should not use performance management to avoid dealing with genuine misconduct.

For example, suppose an employee has been instructed repeatedly to submit reports by a specific deadline and deliberately refuses to do so.

Calling this merely a “performance issue” may fail to address the actual behaviour.

The employer should establish whether the employee is genuinely unable to meet the requirement or is deliberately refusing to comply.

 

What Managers Should Do Before Taking Action

Before starting either a disciplinary or performance-management process, ask these questions:

Question 1

What exactly is the problem?

Avoid vague descriptions such as “bad attitude” or “poor performance.”

Question 2

What standard was expected?

Identify the rule, KPI, job requirement or workplace standard.

Question 3

Did the employee know what was expected?

If the requirement was never communicated, management may need to address that first.

Question 4

Is the employee unable or unwilling to comply?

This can help identify whether the issue may involve performance or misconduct.

Question 5

What evidence do we have?

Decisions should be based on facts rather than assumptions.

Question 6

Has the employee been given a fair opportunity to respond or improve?

The answer depends on the nature of the problem and applicable process.

Question 7

Are we treating similar cases consistently?

Consistency is an important consideration in employee relations.

 

A Practical Decision Guide

Use the following as an initial management guide:

Employee is not meeting a reasonable performance standard

↓

Does the employee understand the required standard?

No → Clarify expectations and provide appropriate guidance.

Yes → Continue assessment.

↓

Does the employee have the knowledge, skills, resources and reasonable support required?

No → Address the capability/support issue.

Yes → Continue assessment.

↓

Is the employee genuinely trying but failing to meet the standard?

Yes → Consider appropriate performance management or incapacity process.

No → Investigate whether the behaviour may constitute misconduct.

This is a management framework, not a substitute for assessing the specific circumstances of a case.

 

Common Mistakes Employers Make

Treating every performance problem as misconduct

An employee should not automatically be disciplined simply because their performance is below target.

Assuming poor performance means laziness

Performance problems can have many causes.

Setting unrealistic KPIs

A performance standard should be reasonable and appropriate for the employee’s role and circumstances.

Failing to train employees

It is difficult to fairly criticise an employee for failing to perform a task they were never properly taught.

Waiting too long to address performance problems

Small performance issues can become significantly harder to manage when they are ignored for months.

Using a PIP as a dismissal document

A performance-improvement plan should provide a genuine opportunity for improvement.

Changing the process halfway through

Employers should understand whether they are dealing with misconduct, performance or another employment issue before taking formal action.

Ignoring employee explanations

An employee’s explanation may reveal that the initial assumption about the problem was incorrect.

 

A Practical Example for Small Businesses

Consider a small business with ten employees.

One employee repeatedly fails to complete monthly reports.

The manager becomes frustrated and immediately wants to issue a disciplinary charge for “failure to perform duties.”

Before doing so, HR should ask:

• Was the reporting requirement explained?
• Is it part of the employee’s job?
• Was the deadline communicated?
• Does the employee have access to the required information?
• Has the employee received training?
• Are other employees meeting the same standard?
• Why has the employee failed to complete the reports?
• Has the employee previously been given feedback?

Suppose the investigation reveals that the employee understands the task but has never been trained on the reporting system.

The appropriate response may be training and performance support.

Now suppose the employee has been properly trained, understands the requirement, has the necessary resources and deliberately refuses to complete the reports.

The issue may be materially different.

The facts determine the appropriate response.

 

Why Good HR Records Matter

Whether the issue involves performance or misconduct, documentation is important.

Employers should maintain appropriate records of:

• Performance expectations;
• Job descriptions;
• KPIs;
• Performance reviews;
• Feedback discussions;
• Training;
• Coaching;
• Warnings where applicable;
• Investigation records;
• Employee responses;
• Performance-improvement plans;
• Review meetings; and
• Final outcomes.

Good documentation allows management to understand what happened and demonstrates how the matter was handled.

Documentation should reflect the actual process. It should not be created retrospectively simply to justify a predetermined outcome.

 

Final Thoughts

The distinction between misconduct and poor performance is fundamental to effective employee relations.

Misconduct generally concerns behaviour and the breach of workplace rules or standards.

Poor performance generally concerns an employee’s failure to meet a required performance standard or their ability to perform the requirements of the job.

The distinction is not always obvious, particularly where an employee’s behaviour contributes to poor performance.

Employers should therefore investigate the underlying facts before deciding which process to use.

A fair HR approach asks:

What happened?

Why did it happen?

What standard applied?

Did the employee understand the standard?

Was the employee capable of meeting it?

Was the employee given appropriate support?

What does the evidence show?

Answering those questions before taking action can help employers manage workplace problems more fairly and consistently.

For South African employers, HR and employee-relations processes should be aligned with applicable employment legislation, workplace policies, collective agreements and the circumstances of each individual case.

 

Frequently Asked Questions

Is poor performance the same as misconduct?

No. Poor performance generally concerns an employee’s failure to meet a required performance standard, while misconduct concerns a breach of a workplace rule, standard or expected behaviour.

Can an employee be dismissed for poor performance?

Yes, dismissal can be an outcome in appropriate circumstances, but the employer should follow the applicable fair process and consider whether the employee was given a reasonable opportunity and appropriate support to improve.

Can an employee receive a warning for poor performance?

The appropriate response depends on the circumstances and applicable workplace process. Employers should distinguish corrective performance management from disciplinary action for misconduct.

Can an employee be disciplined for failing to meet a target?

Not automatically. The employer should first determine why the employee failed to meet the target and whether the issue involves capability, resources, unclear expectations, genuine underperformance or deliberate conduct.

What is a PIP?

A Performance Improvement Plan is a structured plan that identifies performance deficiencies, required improvements, support measures and review periods.

How long should a performance-improvement process last?

There is no universal period that applies to every employee and every role. The appropriate period depends on the nature of the performance problem, the role, the required standard and the circumstances.

What should an employer do when it is unclear whether an issue is misconduct or poor performance?

The employer should investigate the facts before deciding on the appropriate process. Where the matter is serious or potentially leads to dismissal, obtaining professional HR or labour-relations guidance can help ensure that the appropriate process is followed.

 

Disclaimer

This article is provided for general informational and educational purposes and does not constitute legal advice. Employment matters depend on their specific facts, applicable legislation, workplace policies, collective agreements and other relevant circumstances. Employers should obtain appropriate professional or legal advice where a matter is complex or may result in dismissal or another significant employment consequence.

Devhulon Business & People Solutions provides HR consulting and people-management support to businesses seeking practical assistance with employee relations, performance management, HR compliance and workplace processes.