More often than not employers get it wrong. Although each of these issues mentioned in the title requires a different approach, the result in all may be that of dismissal.

Misconduct, or unacceptable behavior, occurs when a rule is broken, or some other unacceptable behavior happens. It usually results in immediate disciplinary action and, depending on the severity of the misconduct, perhaps even dismissal.

It is therefore important that the employer satisfies the following requirements in order to render a dismissal substantively fair.
Is there a rule/norm in place?

• Was the employee aware of the rule/norm?
• Was the rule/norm broken?
• Was the employee aware of the consequences of breaking the rule/norm?
• Is the rule/norm consistently applied?

‘Will not’ is a deliberate action taken by the employee. The answer to whether the “contravention” of a
workplace rule is misconduct or poor performance is determined by asking the following questions:

1. Do I have the ability, but I don’t want to?
2. Do I lack the ability, but I want to…?

If the answer to the first question is yes, then it is misconduct and if the answer to the second question is yes, then it is poor performance.

That brings me to the issue of ‘Cannot’.
There are three basic types of poor performance:

1. Unsatisfactory work content – in terms of quantity, quality, and not meeting required production
   targets etc;
2. Breaches of work practices, procedures and rules – such as breaching occupational health and
   safety requirements, excessive absenteeism, etc; and
3. Personal problems – these are usually ‘off-the-job’ issues that affect the employee’s performance at work.

The procedures for handling poor performance are completely different from those for handling misconduct. Performance is all about how the employee does the job. Poor Performance results in investigation, counseling, meetings and discussions with the employee and training. It should be noted however, that the aim of the counseling session is not to punish the employee, but to assist him/her to recognise and overcome the problem. This does not mean that such an employee cannot be dismissed. If the matter comes to dismissal, then the Code of Good Practice – Dismissal must be applied, as well as the employer’s own procedures, if any. The employer is obliged to consider whether the employee did, in fact, fail to meet a performance standard, if he or she could reasonably be expected to have been aware of the required standard, whether a fair opportunity was given to the employee to meet the required standard and most importantly, the employer must assess whether or not dismissal is an appropriate sanction.

Being ‘lazy’ on the other hand is when an employee is averse to work or avoids it. It can also be used to describe something slow-moving, lacking energy or not in a hurry to get things done. Employees who do not pull their weight cause employers or business owners much frustration. Such employees are often referred to as being “disengaged” and when their performance is consistently poor, it has the potential to impact on a company’s profitability. If you have invested a significant amount of time and effort in training your staff, it may be worth it to try to re-energize a team member who has strayed off-course.

• Talk it out
• Create accountability
• Play to their strengths
• Offer incentives