Incapacity versus misconduct

Employers are often confronted with situations where it is difficult to differentiate between misconduct and incapacity. It is however crucial that the employer conduct a proper investigation before taking any disciplinary steps to ascertain if the employee’s conduct leans towards misconduct, or incapacity, as this will determine what process the employer should follow to address the issue.

Although both the disciplinary hearing and incapacity consultation are deemed fair procedures (if executed correctly), the employer should take care to apply the right procedure according to the employee’s conduct.  In many cases employers follow the wrong procedure and then dismiss the employee.  This poses a real risk to the employer if the employee refers the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) and the commissioner issues an award for remuneration and/or reinstatement.



Incapacity refers to when an employee is incompetent and inherently unable to meet fixed performance standards whether due to ill health or poor work performance. The employer is required to provide an employee with training and guidance, as well as the opportunity to improve, where the employee lacks the required skill or knowledge to perform a certain task. Where the employee cannot perform according to the employer’s required standard due to ill health, the employer should consider the nature of the employee’s job, period of absence, seriousness of the employee’s illness or injury, possibility of accommodating the employee’s disability, and possibility of securing alternative employment within the business.


Misconduct refers to an employee’s failure to adhere to the employer’s rules and policies. In basic terms, misconduct is a behaviour issue of the employee. Such behaviour is normally deliberate or negligent, and employees can be held accountable for their actions. Misconduct can take various forms, including theft, fraud, dishonesty, insubordination, absence from work without permission, etc.
Every workplace must have a relevant disciplinary code. The disciplinary code is essential in ensuring that there are clear rules in the workplace, with appropriate sanctions, that employees can follow. When these rules are broken, the employer can apply progressive discipline. In cases of serious misconduct employers can directly proceed with a disciplinary hearing.
During the disciplinary hearing, the employer must provide the employee with an opportunity to be heard and to respond to allegations made. The employer should prove the following:
  • Was there a rule in the workplace and was the employee (reasonably) aware of this rule?
  • Did the employee break the rule?
  • Did the employer apply progressive discipline (warnings)?
  • Is the rule consistently applied?

Grounds for dismissal

The Labour Relations Act (LRA) distinguishes between ‘no fault dismissals’ (due to operational requirements or incapacity) and ‘dismissals due to misconduct’. The three grounds for justifiable dismissal are listed as: misconduct, incapacity, and operational requirements.
It is important that employers deal with issues in the workplace as quickly and effectively as possible, while taking care to act objectively and consistently.



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