Misconduct vs Incapacity: Why Employers Keep Getting This Wrong
One of the most common mistakes we see in the workplace is how employers deal with poor performance. An employee who makes repeated mistakes, targets aren’t being met, or work quality is slipping, the immediate response is to take disciplinary action. On the surface, that seems reasonable.
In many cases, however, the issue is not misconduct at all; it is incapacity. Getting this wrong can have serious consequences, particularly when matters proceed to the CCMA.
Misconduct vs incapacity: what’s the real difference?
The distinction comes down to a simple question:
Is the employee unwilling, or unable?
- If the employee can comply but chooses not to, this is misconduct.
- If the employee wants to comply but cannot, this is incapacity.
That distinction determines the entire process an employer is required to follow.
When it is misconduct
Misconduct involves a breach of a rule or standard.
This includes situations where an employee:
- ignores instructions
- acts negligently
- breaches company policies
- behaves dishonestly
In these cases, the employee is at fault, and disciplinary action is appropriate.
When is it incapacity
Incapacity is different. It’s not about blame, it’s about ability.
This is typically seen where:
- an employee is struggling to meet performance standards
- the issue relates to skill, understanding, or training
In these situations, the law expects employers to take a supportive and corrective approach, not a punitive one.
This includes:
- identifying the performance gap
- providing guidance or training
- allowing time for improvement
Where things go wrong
The problem arises when employers treat performance issues as misconduct.
For example:
- disciplining someone for failing to meet targets
- proceeding with a hearing where there is no clear rule breach
In many of these cases, there is no evidence of wilful or deliberate wrongdoing — only an inability to perform at the required level. This is where the risk begins.
What the courts have said
The courts have repeatedly confirmed that employers must apply the correct process based on the nature of the issue. In Transnet Freight Rail v Transnet Bargaining Council and Others, the Court emphasised that fairness requires a proper assessment of the employee’s conduct and the correct procedural approach.
In Sally-Anne Bentley v Survival Tyre Safety (Pty) Ltd, it was confirmed that where an employee’s shortcomings are due to inability rather than fault, the matter should be addressed as incapacity.
Similarly, in Midas Group (Pty) Ltd t/a Midas Komatipoort v NUMSA and Others, the Court highlighted that not all negligence is misconduct. Where the issue stems from a lack of skill or ability, incapacity procedures are more appropriate.
How to spot the difference
Before moving into a disciplinary process, employers should pause and ask:
- Is there a clear rule that has been broken?
- Did the employee intentionally disregard instructions? Or is this a pattern of poor performance?
- Has the employee been trained or supported?
If the issue is ability rather than behaviour, discipline is unlikely to be the correct route.
Why this matters
Using the wrong process can lead to:
- unfair dismissal findings
- reinstatement orders
- compensation awards
- unnecessary legal risk
In many cases, employers lose not because they were wrong about the problem but rather because they used the wrong approach to address it.
Final thought
Not every mistake is misconduct. Sometimes, it’s a sign that the employee is struggling to meet the required standard, which requires a different response.
Employers who take the time to correctly identify whether an issue is one of conduct or capability are far more likely to achieve outcomes that are both fair and defensible.
As always, please contact us should you seek professional advice regarding this or any other HR and IR matters and issues.
Off the Desk of
Angelique Hefer
HR & Payroll Consultant