Checklist: The Difference between Misconduct and Poor Performance (Incapacity)

Misconduct and poor performance enquiries are different. The checklist below is a guide and will assist the employer to determine whether the conduct in question is characterised as misconduct or poor performance:

Blame is involved – intentional or negligent

The employee is able but unwilling to meet the required standard of conduct


No blame or fault is involved

The employee is unable to meet the required standard of performance

Breach of a workplace rule


Failure to meet  a workplace standard
Test to determine misconduct:

  • Did the employee break a rule or standard regulating conduct in the workplace?
  • Was the rule valid or reasonable?
  • Was the employee aware of the rule?
  • Was the rule consistently applied?
  • Would dismissal be appropriate?
Test to determine incapacity:

  • Did the employee fail to meet a performance standard?
  • Was the standard reasonable / achievable?
  • Was the employee aware of the required standard?
  • Was the employee given a fair opportunity to meet the standard?
  • Would dismissal be the appropriate sanction for not meeting the required standard?
  • What alternatives to dismissal have been considered?
Steps that can be taken:

Disciplinary steps are taken, including informal advice, correction, warnings or dismissal (following a disciplinary hearing) depending on the seriousness of the transgression.

Steps that can be taken:

Training, evaluation, counselling and ultimately dismissal (following an incapacity hearing).

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