Ricochet News

The difference between incapacity for poor work performance and negligence in performance

By Goldberg & de Villiers - Dec 15, 2016
The difference between incapacity for poor work performance and negligence in performance

Our clients frequently approach our firm seeking guidance on the situation in which an employee is employed on a fantastic CV and begins his/her employment with a "bang" but thereafter starts to taper off making silly mistakes or disregarding standard operating procedures.

The client then goes on to state, but the employee knows how to work properly but the client just cannot put his/her finger on the problem.

In such a situation the employer is to ask the following questions to himself: "Is the non performance due to a situation in which the employee is trying to reach his/her KPIs  but failing?"

So a situation  of I want to succeed but just can't get there, or "is the failure to perform due to the employee having all the necessary skills and ability, but simply won't perform?" The employee in the second scenario chooses not to perform, a case of "I won't".

In the first scenario, the employee is to be managed in terms of poor performance.

The second scenario is however different as the employee is capable of performing but neglects to do so diligently. In such a case, the employee is committing misconduct and may be charged accordingly.

It is crucial that there be a meeting/ counselling with the employee initially to ensure that the correct course of action is chosen.

For assistance in this regard and all other labour law matters contact the Labour Law Dept of Goldberg & de Villiers, headed by Tracey Mouton. Tel. 041 5019800. Visit www.goldbergdevilliers.co.za