Misconduct vs incapacity

Madeleine Els describes the difference between misconduct and incapacity, and the effect each has on the business. She stresses why it is important for employers to understand the difference between the two.

- Madeleine Els

Employers are often confronted with situations where it is te difficult to differentiate between misconduct and incapacity.

It is crucial, however, that the employer conduct a proper investigation before taking any disciplinary steps to ascertain whether the employee's conduct leans towards misconduct or incapacity, as this will determine which process the employer should follow to address the issue.

Although both the disciplinary hearing and incapacity consultation are deemed fair procedures (if executed correctly), the employer should take care to apply the right procedure according to the employee's conduct.

In many cases, employers follow the wrong procedure and then dismiss the employee. This poses a real financial risk to the employer if the employee refers the matter to the Commission for Conciliation, Mediation and Arbitration and the commissioner issues an award and/or reinstatement.

MISCONDUCT

Misconduct refers to an employee's failure to adhere to the employer's rules and policies, and is a behavioural issue. Such behaviour is usually either deliberate or negligent, and the employee can be held accountable for his or her actions.