THE FINE LINE BETWEEN NEGLIGENCE & POOR WORK PERFORMANCE
BY – SHANNON BOTES
In any workplace, employees are expected to do their jobs for which they are employed. But what happens when they don’t? It’s important to understand the difference between negligence (misconduct) and poor work performance (incapacity) because each is handled very differently under South African labour laws. Confusing the two can lead to unfair labour practices and unfair dismissals.
Let’s break it down in a simple way.
Negligence (Misconduct) – When You Should Have Known Better!!
Negligence happens when an employee fails to take proper care whilst doing their job, leading to mistakes, damage or harm. This isn’t just about making errors – it’s about being careless, reckless, or not following the rules properly.
Examples of Negligence:
· A nurse forgets to give a patient the correct medication because they didn’t check the chart.
· A delivery driver speeds through a red light, causing an accident.
· An accountant skips double-checking the numbers, leading to financial losses for the company.
Negligence can be minor (a small mistake that can be corrected) or gross (a serious failure that could get you fired immediately).
How To Handle Negligence:
Because negligence is a type of misconduct, it’s dealt with through disciplinary action. The Employer should:
1. Investigate the situation.
2. Hold a disciplinary hearing if serious.
3. Issue warnings or dismiss the employee, depending on how serious the negligence was.
If the negligence is severe enough to cause major harm or loss, an employer may dismiss the employee on the first offense.
Poor Work Performance (Incapacity) – When You’re Trying, But Struggling
Poor work performance is different from negligence. It happens when an employee isn’t meeting job expectations, but not because they’re careless or breaking the rules. Instead, they might lack the skills, ability, or experience to do the job properly – even if they’re trying their best.
Examples of Poor Work Performance:
· A salesperson who struggles to meet sales targets, despite putting in effort.
· A manager who can’t handle leadership responsibilities effectively.
· A factory worker who isn’t fast enough to meet production quotas.
How To Handle Poor Performance:
Since this is an incapacity issue, not a misconduct issue, employers must follow a performance management process before considering dismissal. This includes:
1. Identifying the problem – Clearly explaining what isn’t working.
2. Providing training and support – Helping the employee improve.
3. Setting clear targets – Letting them know what they need to do better.
4. Monitoring progress – Giving them time to improve.
5. Providing Counselling, Training, Assistance and Coaching.
Final assessment – If things don’t improve after reasonable Training, Counselling, Assistance and Coaching, the employer may hold an incapacity hearing (not a disciplinary hearing) to decide the next steps.
If the employee still can’t meet expectations despite all these efforts, dismissal might be justified – but only if the proper process has been followed.
Key Differences Between Negligence and Poor Performance
Confusing negligence and poor work performance can lead to unfair dismissals and legal disputes. An employer can’t dismiss an employee for poor performance the same way they would for misconduct – the law requires a fair process as outlined in the code of good practice.
On the flip side, employees need to understand that while they have the right to support and training for poor performance, they can’t use that as an excuse for carelessness or rule-breaking.
Should you require additional information about how to handle either poor work performance or negligence – please feel free to contact us.