The fine line between misconduct and incapacity

It is not always easy to distinguish between an employee’s misconduct (breaching a rule or standard governing conduct in the workplace) and an employee’s incapacity (failing to reach a performance standard). This point has recently again been illustrated by the decision of the Labour Court in SABC v CCMA & others (2005) 15 LC 1.11.2 . The employee, a senior manager (regional editor) was responsible for the SABC newsroom in the Free State. Various disciplinary charges were brought against her and she was dismissed for misconduct. These charges related to a disruption of relations in the newsroom, poor supervision and undermining the interests of the employer.

The CCMA commissioner concluded that the employee should not have been dismissed for misconduct because the employer’s evidence showed that it was in fact her incapacity (poor work performance) that gave rise to the dismissal. The Labour Court analysed the charges and the allegations giving rise to the charges in some detail. The factual allegations included that the employee, as manager, surrounded herself with certain employees, that she favoured certain employees above others and that she disclosed what was said in a confidential discussion.

In relation to the charge of poor supervision, the factual allegations related largely to her failure to act against some employees who appeared to have been guilty of misconduct. Under the heading of undermining the interests of the employer, the employer’s allegation was that the employee had said that the news section was a boring place for old people, and that she threatened some employees with transfers. These actions had serious effects on the morale of employees and this in turn affected productivity. In essence, the Court found, the charges related to an improper use of her power to make or to recommend employees for appointment, allegations that she abused her disciplinary powers, and further allegations that she abused her power to recommend and bring about salary increases for those employees she favoured. Finally, the charges also related to allegations of abuse of the employee’s managerial powers to unjustly punish the employees who did not enjoy her favour.

On review, the Labour Court found that the CCMA commissioner did not analyse the evidence in any detail and that he did not assess its value. His approach was simply to catagorise the all the evidence brought against the employee as complaints of poor work performance — and because she had been dismissed for misconduct, the dismissal was therefore unfair. But the Court held that the charges constituted evidence of misconduct and the Commissioner erred in failing to address the real issue: whether the employee’s misconduct was serious enough to warrant a dismissal for misconduct.

As regards the distinguishing line between misconduct and poor performance (or even operational requirements) is not always easy to draw, the Court continued. Often, the same conduct may give rise to more than one categorisation and employers may (not unreasonably) make mistakes in their attempt to categorise the matter as being of misconduct or poor performance. But the employer’s failure to correctly categorise the matter does not change the fundamental questions: was there a substantively fair reason for the dismissal and whether an appropriate and fair procedure had been followed before the dismissal.

The Court concluded that the CCMA commissioner’s award was reviewable and it was set aside. The matter was referred back to the CCMA to be heard by another commissioner. The new commissioner would be required to analyse the facts thoroughly and to ascertain whether the facts, once proven, justify a dismissal. The commissioner would also have to determine whether reinstatement was appropriate under the circumstances, and whether the dismissal was procedurally unfair.

While an employer may have some leeway, it seems, in mistakenly categorising a dismissal as one for misconduct or for poor work performance, the Labour Court has made clear, in this case, that a CCMA commissioner must analyse the evidence in sufficient detail as to draw a sound conclusion.