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Dealing with poor work performance remains one of the more nuanced challenges in the employment environment. Unlike misconduct which typically involves deliberate wrongdoing, poor performance relates to an employee’s capacity to perform to the required standard.

Distinguishing Poor Performance from Misconduct

Negligence and poor work performance are often confused. In ZA one (Pty) Ltd t/a Naartjie Clothing v Goldman N.O, the Court aptly differentiated the two by asking whether the employee tried, but could not do the work, or if could do the work, but failed. The former constitutes poor work performance, while the latter constitutes misconduct. As a result, the approach to managing – and ultimately proving – poor work performance is fundamentally different. It requires a structured, fair, and evidence-based process rather than a purely disciplinary one.

In practice, many employers encounter difficulties not because the employee was performing adequately, but because the employer cannot demonstrate that the issue was managed fairly. Proving poor performance is therefore less about the existence of underperformance and more about the process followed in addressing it.

The Role of Standards and Employee Awareness

At the core of any poor performance case lies the question of standards.

An employer cannot prove that an employee has failed unless there is a clear benchmark against which that performance is measured. This makes it essential for employers to establish and communicate performance standards from the outset.

These standards should ideally be specific, measurable, and aligned with the employee’s role. Vague expectations such as requiring employees to “perform satisfactorily” or “improve productivity” are insufficient, as they leave too much room for interpretation. By contrast, measurable targets such as output levels, deadlines, or quality indicators, provide a far more reliable basis for assessment.

Closely linked to the existence of standards is the issue of employee awareness. It is not enough for standards to exist; the employer must also be able to show that the employee knew, or could reasonably have been expected to know, what was required. This is typically established through job descriptions, performance agreements, induction processes, and ongoing engagement between the employee and their manager.

Where expectations are not clearly communicated, or where performance concerns are only raised at a late stage, employers are unlikely to succeed in proving that the employee failed to meet the required standard.

Documentation and the Evidence Base

Once standards are in place and have been communicated, the next critical element is evidence.

Poor work performance is rarely established through a single incident. Instead, it is demonstrated through a pattern of conduct over time. This is where consistent and accurate documentation becomes indispensable. Employers should retain records of performance reviews, examples of substandard work, missed deadlines, errors, and any prior discussions relating to performance concerns. Informal counselling sessions, emails, and internal notes can all contribute to building a coherent picture of ongoing underperformance. Without such records, it is difficult to substantiate claims that the employee was consistently failing to perform.

Supporting the Employee Towards Improvement

Identifying and documenting poor performance is only part of the poor work performance process. Employers are also expected to take proactive steps to assist the employee in improving. This reflects the legal principle that poor performance is a matter of incapacity rather than misconduct. As such, the emphasis is on correction rather than punishment.

Employers need to engage with the employee to identify possible reasons for the underperformance, which may include a lack of skills, insufficient training, unclear expectations, or external factors affecting performance. In this regard, providing guidance, training and support is a critical component of a fair process. This may involve additional supervision, coaching, formal training interventions, or simply clearer instruction regarding the required standard. The extent of support will depend on the nature of the role and the employee’s level of experience, but the underlying requirement remains the same: The employer must demonstrate a genuine effort to assist the employee to meet the required standard.

A structured performance counselling process is typically used to formalise this effort. Initially, this may take the form of informal discussions aimed at raising concerns and clarifying expectations. If performance does not improve, the process should progress to more formal counselling, where specific shortcomings are identified, and clear improvement targets are set. These discussions should be recorded, both to ensure clarity and to provide evidence of the steps taken.

Setting a Structured Path to Improvement

In many cases, the introduction of a Performance Improvement Plan (PIP) is a useful and effective tool. A well-drafted PIP sets out the areas of concern, the required standards, the expected timeframe for improvement, and the support that will be provided. It also establishes review points at which progress can be assessed. Importantly, the PIP should be specific and measurable, as this allows for an objective assessment of whether the employee has improved.

From an evidentiary perspective, a properly implemented PIP often serves as one of the most compelling indicators that the employer acted fairly.

Assessing Progress and Considering Next Steps

An equally important aspect of the process is the opportunity afforded to the employee to improve. The law does not prescribe a fixed period, as this will depend on the circumstances. Factors such as the complexity of the job, the employee’s seniority, and the nature of the performance issues will all play a role. Senior employees, for example, may reasonably be expected to demonstrate improvement in a shorter period, while junior or less experienced employees may require more time and support. What matters is that the opportunity provided is reasonable in the context of the particular case.

At the conclusion of the improvement period, the employer must evaluate the employee’s performance objectively. This assessment should be based on evidence rather than on perception, and should consider whether the employee has met the required standard or demonstrated sufficient improvement. If performance remains unsatisfactory, the employer may consider further action, including dismissal. However, before doing so, it is important to consider whether any alternatives exist, such as redeployment to a more suitable position or, where appropriate, demotion.

Justifying Dismissal and Avoiding Common Pitfalls

Ultimately, in order to justify dismissal for poor work performance, the employer must be able to demonstrate a clear and coherent sequence of events. This includes showing that the standard was established and communicated, that the employee failed to meet that standard, that the employer provided guidance and support, that a fair opportunity to improve was given, and that the employee nevertheless failed to improve.

Employers often encounter difficulties where one or more of these elements is missing. Common pitfalls include failing to set clear performance standards, neglecting to document performance issues, bypassing the counselling process, or acting prematurely without allowing sufficient time for improvement. In some instances, employers mistakenly treat poor performance as misconduct, leading to the application of an inappropriate disciplinary process. These missteps can significantly weaken the employer’s position in any subsequent dispute.

The Exception for Senior Employees

In New Forest Farming CC v Cachalia & others and Somyo v Ross Poultry Breeders, the Court held that a senior manager may be dismissed due to poor work performance without allowing him or her an opportunity to improve. This is so if it can be shown that the employee has the necessary skills, qualifications and experience to know that correcting performance is necessary and that such an employee would know how to improve performance without the employer’s assistance. The Court held that such employees are expected to self-correct and that in such cases the employer may be justified in following a truncated process.

Process as Protection – for Both Parties

In conclusion, proving poor work performance is not a singular event but a process that unfolds over time. It requires careful planning, consistent engagement, and thorough documentation. Employers who adopt a structured and fair approach not only place themselves in a stronger position to defend their decisions, but also create an environment in which employees are given a meaningful opportunity to improve. In many cases, this approach will resolve performance issues before they escalate, thereby benefiting both the employer and the employee.

Written by Cilliers Neethling