Dereliction of duty and poor performance

Employers often face the situation where an employee fails to do his / her job properly. It is necessary, in such cases, to understand the difference between dereliction of duty and poor performance.

This distinction is important because dereliction of duty is a form of misconduct whereas poor performance is a form of incapacity. The appropriate process for the employer to follow depends on whether one is dealing with a case of misconduct or incapacity. As a result, if the issue is incorrectly categorized and treated as misconduct despite being an incapacity situation (or vice versa), any dismissal that ensues will be procedurally unfair and the employee may claim compensation.

The essential difference is that dereliction of duty involves a situation where the employee has the ability ro fulfil the task but fails to do so (i.e. won’t do) whereas poor performance  involves a situation where the employee does not have the capacity to meet the required performance standard (i.e. can’t do).

At a procedural level, in a dereliction of duty scenario, the appropriate route for the employer to follow is to convene a disciplinary hearimg. In a poor performance scenario, the procedural obligation on the emplpyer is far more onerous. It must, over a period of time, provide the employee with appropriate training, guidance, mentoring and feedback, and if the employee still can’t meet the performance standard, it must explore avenues short pf dismissal (such as placement in a suitable alternative position, of available) before resorting to dismissal.

The reason for dismissal also impacts on the employer’s rights post-dismissal. In a miscondcut dismissal scenario, if the employee refers an unfair dismissal claim to the CCMA, legal representation is prohibited unless am application for legal representation is made amd granted. In an incapacity scenario such as a poor performance case, legal representation is automatically allowed in the CCMA. This is another reason why it is crucial to distinguish between dereliction of duty and poor performance.