LLexiSA

Managing Employees

Managing Poor Performance (Incapacity)

Poor work performance is legally treated as incapacity, not misconduct — the employee isn't being punished for wrongdoing, they're being assessed against a standard they may need help to meet. That means a different process from a disciplinary hearing: setting clear standards, giving guidance and a fair chance to improve, and only dismissing once it's clear the employee genuinely cannot meet the required standard, not merely that they haven't yet.

Key facts

  • The Code of Good Practice: Dismissal (Schedule 8, item 9) requires the employer to have set a clear performance standard the employee knew about, to have investigated the reasons for underperformance, and to have given guidance, training or counselling before considering dismissal.
  • A single poor result rarely justifies dismissal — the standard usually requires a sustained pattern despite a genuine opportunity to improve (commonly via a Performance Improvement Plan).
  • If the underperformance stems from a medical or psychological condition, incapacity-for-ill-health procedures (not the poor-performance procedure) may apply instead — the two are legally distinct.
  • Dismissal for poor performance is a last resort after reasonable steps to help the employee improve have failed, not the first response to a disappointing result.

The law that applies

  • LRA Code of Good Practice: Dismissal (Schedule 8) — item 9 (incapacity: poor work performance)
  • Labour Relations Act 66 of 1995 — s 188

Practical steps

  1. Set a clear, measurable performance standard and communicate it to the employee.
  2. When performance falls short, investigate why — is it capability, resources, unclear expectations, or something else?
  3. Put a Performance Improvement Plan in writing, with specific goals, support offered, and review dates.
  4. Give honest, documented feedback at each review point — don't let silence be mistaken for acceptable performance.
  5. Only move to dismissal once a genuine opportunity to improve has been given and clearly not met.

Frequently asked questions

How long does a Performance Improvement Plan (PIP) need to run before I can dismiss?

There's no fixed statutory period — it must be a genuinely reasonable opportunity given the role and the specific gap being addressed. Weeks for a straightforward, coachable issue; longer for something requiring skill development.

Can I skip the PIP process for a senior employee who should 'know better'?

Seniority can shorten what's reasonable, since senior employees are expected to self-assess more, but it doesn't remove the requirement entirely — you still need to have communicated the standard and given some opportunity to respond to the shortfall.

Have a specific employee situation?

Ask Chat to Lex. It will take your specific facts and give you a cited assessment — not just the general position above — free.

Ask about managing poor performance (incapacity)

This guide is legal information, not legal advice, and may not reflect amendments after its last review. For advice on your specific circumstances, consult a practising attorney or labour law specialist.