WHEN UNDERPERFORMANCE BECOMES A PROBLEM

It’s one of the most difficult decisions any employer faces: what do you do when a staff member is consistently underperforming, arriving late, missing deadlines, and negatively impacting the team? While dismissal may seem like the obvious answer, South African labour law requires that this be handled carefully, fairly, and within strict legal boundaries.

The Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA) protect employees from unfair dismissal. These laws do not prevent you from terminating the services of a non-performing or disruptive employee—but they do require that you follow a fair and transparent process. Failing to do so can expose your business to legal claims, CCMA referrals, and reputational damage.

Here’s what every employer needs to understand about managing the dismissal of a problematic employee.

Establishing a Legitimate Reason

Dismissals in South Africa must be for a valid and fair reason. In the case of an employee who is chronically late, misses deadlines, and fails to meet performance expectations, your grounds may fall into one of two categories: misconduct and/or incapacity.

Misconduct refers to behavioral issues—such as habitual lateness or disruptive conduct—while incapacity typically relates to poor work performance or inability to meet the requirements of the job. Identifying the correct reason helps determine the process you must follow.

Building Your Case: The Importance of Evidence

Before considering dismissal, it’s essential to gather objective evidence. This includes attendance records, performance evaluations, written warnings, and any other documentation that highlights the employee’s failure to meet expectations. Communication between the employee and management—particularly where poor performance or concerns were raised—should also be kept on file.

It’s not enough to say someone is “a bad apple.” You need proof of consistent underperformance or misconduct, and you must be able to show that the employee was informed of the problem and given a chance to improve.

Procedural Fairness: The Disciplinary Process

A fair dismissal must follow a fair process. This means you are legally required to inform the employee of the concerns, give them adequate time to prepare, and allow them the opportunity to respond in a formal disciplinary hearing.

At the hearing, the employee must be allowed representation—either by a fellow employee or union representative—and the hearing itself should be chaired by someone impartial. All evidence should be presented, and the employee must be given a fair chance to explain or defend their actions. The outcome must be based on facts, not assumptions.

When Performance Is the Problem

If poor performance is the primary issue, the LRA requires that the employee be given a reasonable opportunity to improve before dismissal can be considered. This often involves setting clear performance goals, offering counselling, coaching, or retraining, and providing regular feedback over a defined period.

Dismissal should only follow if the employee continues to fall short after being given the support and time to meet the expected standard. Again, documentation is key—performance plans, progress reports, and meeting notes must all be retained.

Exploring Alternatives to Dismissal

South African labour law views dismissal as a last resort. Before terminating employment, you must consider alternatives such as demotion, transfer to a more suitable role, or additional training. If no reasonable alternatives are available—or if the employee’s behavior or lack of competence is severe—then dismissal may be justified.

Issuing the Dismissal

If, after following the correct process, you decide to dismiss the employee, you must provide a written notice of termination that clearly outlines the reasons for dismissal and the effective date. This must be accompanied by either a notice period (ranging from one to four weeks depending on the employee’s length of service) or payment in lieu of notice.

It is essential that the reasons for dismissal are justifiable and proportional to the misconduct or poor performance—and that they are aligned with your company’s disciplinary policy.

Avoiding Unfair Dismissal Claims

It’s important to remember that even if your employee has performed poorly, dismissal will be considered automatically unfair if it is based on prohibited grounds. These include race, gender, union membership, political beliefs, pregnancy, whistleblowing, or filing a grievance.

Dismissals must be based on conduct and capability—not on discrimination or retaliation. If the case ends up before the CCMA, they will look at both the process and the substance of your decision.

Moving Forward

Dismissing an employee under South African law is not as simple as issuing a warning and showing them the door. It’s a legal process that requires discipline, documentation, and fairness at every step.

While dealing with underperformance and poor conduct is difficult, handling it incorrectly is worse. By following the correct procedures, employers can take decisive action while remaining compliant with the law.

If you're unsure of how to manage the process—or if you're already facing a complex situation—our team can assist with professional guidance, hearing facilitation, and legal support. We’ll help you protect your business while staying on the right side of the law.

Need help managing a disciplinary matter or dismissal? Reach out to us today—we’re here to help you act confidently, lawfully, and fairly.