Dismissal for Poor Work Performance

Dismissal for Poor Work Performance in South African Labour Law

Dismissal for Poor Work Performance occurs where an employee is unable, despite an appropriate opportunity and support where required, to meet a reasonable performance standard required for the job.

Poor work performance is ordinarily treated as a form of incapacity, rather than misconduct. This distinction is fundamental because an employee who is unable to achieve the required standard should not ordinarily be treated in the same manner as an employee who deliberately refuses to perform duties that the employee is capable of performing.

The legal framework changed materially on 4 September 2025, when the Minister of Employment and Labour published the new Code of Practice: Dismissal under the Labour Relations Act 66 of 1995 (“LRA”). The new Code took effect immediately upon publication and repealed the former Schedule 8 Code of Good Practice: Dismissal.

For employees who have completed probation, the new Code provides that an employee should not be dismissed for unsatisfactory performance unless the employer has provided appropriate evaluation, instruction, training, guidance or counselling and, after a reasonable period for improvement, the employee continues to perform unsatisfactorily. Before dismissal, the employee must also be given an opportunity to respond to the allegations concerning unsatisfactory performance.

The Code further requires consideration of whether the employee actually failed to meet a performance standard and, if so, whether the employee knew or could reasonably have been expected to know the standard, was given a fair opportunity to achieve it, whether the standard was reasonably achievable, and whether dismissal was an appropriate consequence.

These requirements reflect principles developed over decades of South African labour jurisprudence.

In Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others, the Labour Appeal Court explained that an employer relying on poor performance should establish an existing and known performance standard, serious failure to meet that standard, sufficient assistance and opportunity for improvement, and that the failure resulted from the employee’s inability rather than circumstances outside the employee’s control.

Accordingly, Dismissal for Poor Work Performance should generally be the end of a fair performance-management process rather than the employer’s first response to disappointing results.

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The Current Legal Framework for Dismissal for Poor Work Performance

Section 188 of the LRA provides the overarching fairness requirement applicable to ordinary dismissals.

A dismissal that is not automatically unfair must be justified by a fair reason related to the employee’s conduct or capacity, or by the employer’s operational requirements, and must be effected in accordance with a fair procedure. The LRA establishes the statutory dispute-resolution system through which dismissal disputes are determined.

Poor work performance ordinarily falls within capacity.

The new Code of Practice: Dismissal deals expressly with unsatisfactory performance under Part F – Incapacity.

For a post-probation employee, item 19 provides two central substantive safeguards.

The employer should first have provided appropriate evaluation, instruction, training, guidance or counselling.

The employee must then have been allowed a reasonable period within which to improve.

If the employee continues performing unsatisfactorily after that process, dismissal may potentially become appropriate. Before dismissal, however, the employee should be allowed to respond to the allegations of unsatisfactory performance.

Item 20 then sets out the questions relevant to the ultimate fairness assessment.

The decision-maker should consider whether the employee failed to meet the performance standard.

If the employee failed, it should be determined whether the employee knew or could reasonably have been expected to know the standard, whether a fair opportunity to meet the standard was provided, whether the standard was reasonably achievable and whether dismissal was appropriate.

These requirements demonstrate that poor performance litigation is seldom won merely by producing disappointing monthly statistics.

The employer should be able to explain the standard, why it was reasonable, how it was communicated, what the employee actually achieved, what support was provided, how long improvement was allowed and why further intervention was unlikely to solve the problem.

Poor Work Performance Versus Misconduct

One of the most important questions is whether the problem is inability or unwillingness.

Poor work performance generally concerns an employee who is willing to perform but cannot consistently achieve the required standard.

Misconduct generally involves culpable conduct: an employee knows what is required and is capable of performing appropriately but deliberately or negligently fails to comply with an applicable workplace rule or obligation.

The distinction was examined directly by the Labour Appeal Court in Gold Fields Mining.

The employee in that matter was a qualified sampler. The evidence established that he knew the required sampling procedure, had previously performed it correctly, deliberately failed to follow it and then supplied fabricated information. The LAC held that the matter had been incorrectly characterised as poor performance. It was misconduct.

This distinction has major procedural consequences.

Consider two sales employees who both achieve only 40% of target.

The first works consistently, follows instructions, attends training and genuinely struggles to convert leads despite appropriate effort.

That situation may concern poor performance or incapacity.

The second is capable of achieving the target but repeatedly refuses to contact allocated customers, spends working hours on unrelated activities and deliberately ignores management instructions.

That situation may involve misconduct.

The numerical result is identical.

The legal reason for the result is not.

An employer that misclassifies inability as misconduct may unfairly discipline an employee who required counselling and assistance.

An employer that misclassifies deliberate refusal as incapacity may unnecessarily conduct months of performance counselling where disciplinary action was justified.

Gold Fields Mining expressly cautions that poor performance and misconduct are distinct concepts requiring different fairness enquiries.

Performance Standards in Dismissal for Poor Work Performance

A sustainable Dismissal for Poor Work Performance begins with a performance standard that can actually be identified.

The employer should be able to answer:

What was the employee required to achieve?

How was the standard determined?

When was it communicated?

Was it objectively measurable?

Was it reasonably achievable?

Those questions are now expressly reflected in item 20 of the 2025 Code.

Performance standards can arise from different sources.

A salesperson may have monthly revenue targets.

A debt collector may have recovery targets.

An accounts administrator may be expected to process transactions accurately within defined periods.

A manager may be responsible for budgets, staff supervision and delivery of particular operational objectives.

An engineer may be required to complete designs meeting stipulated technical requirements.

Not every standard has to be expressed as a percentage.

Some positions are qualitatively rather than quantitatively assessed.

However, the more subjective the performance standard, the greater the importance of evidence demonstrating what satisfactory performance actually required.

Targets should also be achievable.

The Labour Appeal Court’s decision in Damelin (Pty) Ltd v Solidarity obo Parkinson is particularly important. The employee was dismissed for failing to achieve stipulated enrolment targets. The LAC upheld the conclusion against the employer where, among other problems, the period allowed to achieve the target was inadequate and questions arose regarding whether the relevant target was realistically achievable.

An employer should therefore consider factors beyond the employee’s control.

A salesperson cannot fairly be assessed as though market conditions never changed.

A production manager cannot necessarily be blamed for output lost because machinery was unavailable for weeks.

An employee cannot reasonably be criticised for failing to complete work dependent on information that management never supplied.

Gold Fields Mining expressly recognised that the employer should be able to demonstrate that failure resulted from the employee’s inability rather than external factors beyond the employee’s control.

Performance evidence should therefore compare like with like.

If management relies upon the performance of other employees as a benchmark, differences in customer portfolios, geographical areas, resources, experience and workload should be considered.

Counselling, Support and Dismissal for Poor Work Performance

A performance-management process should be corrective rather than merely evidential.

The purpose is not simply to create enough documents to dismiss the employee.

The purpose is genuinely to determine whether the employee can reach the required standard.

Under item 19 of the current Code, the employer should provide appropriate evaluation, instruction, training, guidance or counselling before dismissing a post-probation employee for unsatisfactory performance. The employee must then be allowed a reasonable period for improvement.

What is appropriate depends upon the deficiency.

If the employee does not understand a software system, training may be required.

If the employee understands the system but organises work poorly, coaching or guidance may be more appropriate.

If the problem is a misunderstanding of priorities, clearer instructions may be sufficient.

If the employee’s output is consistently inaccurate, closer evaluation and feedback may be necessary.

A commonly used mechanism is a performance improvement plan, or PIP.

South African labour law does not make fairness depend upon whether the employer used a document carrying the formal title “Performance Improvement Plan”. The substantive issue is whether the employer actually provided the evaluation, guidance, assistance and fair improvement opportunity contemplated by the Code. That follows from the Code’s emphasis on the substance of the corrective process rather than any particular document name.

A useful performance plan should nevertheless be sufficiently specific to avoid later disagreement.

It should identify the deficiency, required standard, measures of success, assistance to be provided, review period and review dates.

Progress meetings should record both improvement and continuing deficiencies.

The employee should be given an opportunity to explain obstacles.

An employer should not set an employee up to fail by creating an impossible target and then describing the predictable failure as evidence supporting dismissal.

Probation and Dismissal for Poor Work Performance

Probation is now regulated separately in Part E of the 2025 Code.

The Code confirms that an employer may require a newly hired employee to serve probation before the appointment is confirmed. The purpose is to permit evaluation of the employee’s performance and suitability for continued employment. Probation should not be used as a device to deprive employees of permanent-employment status by repeatedly dismissing and replacing employees for reasons unrelated to performance or suitability.

The probation period should be determined in advance and should be reasonable, taking into account the nature of the job and the period reasonably necessary to determine suitability.

During probation, the employer should provide reasonable guidance appropriate to the job and the nature and size of the employer. That guidance may include instruction, training or counselling so that the employee has an opportunity to render satisfactory service.

Before deciding to dismiss the probationary employee or extend probation, the employer must give the employee an opportunity to make representations and must consider those representations.

There is nevertheless an important distinction between probationary and confirmed employees.

Item 18(2) of the 2025 Code states that, when determining fairness during or at the end of probation, decision-makers should recognise that reasons for dismissal may be less compelling than would be required after probation has been completed.

This principle is consistent with earlier Labour Appeal Court authority.

In Palace Engineering (Pty) Ltd v Ngcobo, the LAC considered dismissal of a senior manager serving probation and recognised the more flexible standard applicable to probationary performance assessment.

Similarly, Ubuntu Education Fund v Paulsen NO concerned performance during probation and confirmed the importance of evaluating probation in accordance with its purpose rather than treating confirmation of appointment as automatic simply because the original end date has arrived.

Probation is therefore a genuine assessment period.

It is not, however, a licence for arbitrary dismissal.

Senior Employees and Poor Work Performance

Senior managers and highly skilled professionals occupy a somewhat different position.

The classic authority is Somyo v Ross Poultry Breeders (Pty) Ltd.

The Labour Appeal Court recognised that the ordinary requirement of extensive warning and assistance may operate differently where a manager or senior employee has sufficient knowledge and experience to judge independently whether the required standard is being met. A similar consideration can arise where professional skill is exceptionally high and a departure from the standard could produce severe consequences.

The new 2025 Code now expressly reflects this principle.

Item 20(2) provides that, depending on the circumstances, an employer may not be required to warn an employee that failure to improve could result in dismissal. It specifically identifies managers and senior employees whose knowledge and experience enable them to assess their own adequacy, as well as employees exercising highly specialised professional skill where departure from the required standard would have sufficiently severe consequences.

This should not be interpreted as a rule that senior employees can always be dismissed immediately.

The wording is expressly circumstance-dependent.

A senior employee may still require clarity concerning newly introduced targets, changed responsibilities or a standard that management never previously communicated.

The recent decision in Abels v University of Stellenbosch illustrates the continued relevance of seniority. The Labour Court considered the employee’s senior position, awareness of his duties, performance deficiencies and opportunities afforded to improve and respond before upholding the outcome of the poor-performance process on review.

Seniority therefore affects the degree of guidance that fairness may require; it does not eliminate fairness.

Ill Health, Disability and Performance Problems

Not every employee who fails to perform is incapable because of skill or aptitude.

Performance may deteriorate because of physical illness, mental illness, injury or disability.

That distinction should be investigated before an employer automatically proceeds under ordinary poor-performance principles.

Part F of the 2025 Code separately regulates incapacity arising from physical or mental ill health or injury. Where incapacity is temporary, the employer should investigate its extent and consider alternatives where absence is likely to be unreasonably long. In cases of permanent incapacity, possible alternative employment or adaptation of duties or working circumstances should be considered.

An employee should therefore raise a genuine medical or disability-related explanation when it becomes relevant, and the employer should investigate rather than simply assume every performance deficiency is attributable to incompetence.

The issue arose in Abels v University of Stellenbosch, where the employee sought to connect his poor performance to depression. On the facts before the Labour Court, the required causal connection was not established; the employee had acknowledged performance concerns predating the diagnosis, and the employer had taken steps to accommodate him and afford opportunities for improvement.

The case should not be understood as establishing that mental-health-related performance problems are irrelevant.

It demonstrates that the cause of the performance deficiency must be established on evidence.

Where illness or disability is genuinely causative, a different or additional incapacity and accommodation enquiry may be required.

Procedure and Evidence for Dismissal for Poor Work Performance

A defensible Dismissal for Poor Work Performance depends heavily upon the documentary record.

Performance concerns should be communicated when they arise.

The employee should know the required standard.

Reviews should describe the actual shortfall rather than rely upon vague statements such as “your attitude and performance are unsatisfactory”.

Where assistance is provided, it should be recorded.

Where targets are adjusted, the reason should be identifiable.

Where the employee says an external factor prevented performance, that explanation should be investigated and documented.

The process should culminate in an opportunity for the employee to respond before the employer decides whether dismissal is appropriate. Item 19(2) of the current Code expressly requires that opportunity.

A conventional misconduct-style disciplinary hearing is not necessarily the conceptual model for incapacity.

What matters is a fair opportunity to understand and respond to the performance case.

That distinction has long been recognised. Sun Couriers (Pty) Ltd v CCMA treated poor work performance as incapacity and distinguished the enquiry from culpability-based misconduct proceedings.

The Labour Appeal Court in Palluci Home Depot (Pty) Ltd v Herskowitz similarly emphasised that dismissal for incapacity or poor performance ordinarily requires appropriate evaluation, instruction, training, guidance or counselling followed by a reasonable opportunity to improve.

The performance file should therefore enable an arbitrator to reconstruct the process.

A sound record ordinarily establishes the job requirements, performance standard, actual results, meetings held, employee explanations, assistance given, improvement period and final assessment.

The employer should also establish why dismissal, rather than further counselling or another reasonable solution, ultimately became appropriate.

CCMA Challenges After a Poor-Performance Dismissal

An employee who alleges unfair dismissal ordinarily has 30 days from the date of dismissal, or from a later final employer decision confirming the dismissal where applicable, to refer the dispute to the relevant bargaining council or the CCMA. Late referrals require condonation. Section 191 regulates that process.

Section 192 regulates the burden of proof.

The employee must first establish that a dismissal occurred.

Once dismissal is established, the employer bears the burden of proving that the dismissal was fair.

For a poor-performance case, this means the employer should arrive at arbitration capable of proving more than the employee’s disappointing output.

The evidence should demonstrate the applicable standard and why it was reasonable.

The employer should show that the employee knew or could reasonably have known what was required.

The evidence should establish the opportunity and assistance given.

The employer should address explanations involving resources, market conditions, workload, training, health or management interference.

Finally, it should establish why dismissal was proportionate.

Damelin illustrates the danger of an unrealistic target or inadequate improvement period.

Gold Fields Mining demonstrates the equally important danger of mischaracterising deliberate wrongdoing as incapacity.

More recently, AMCU obo Ntuli v Ferroglobe Silicon Smelters concerned a senior engineering superintendent who had undergone repeated poor-performance counselling. The Labour Court upheld the dismissal where the evidence demonstrated continuing failure to perform duties expected of the senior employee.

By contrast, a performance process that amounts merely to successive warnings without genuine assistance or a realistic opportunity for improvement may fail the fairness test.

Conclusion: Dismissal for Poor Work Performance

Dismissal for Poor Work Performance is lawful in South Africa where incapacity has been established and both substantive and procedural fairness requirements have been satisfied.

The legal framework must now be considered through the 2025 Code of Practice: Dismissal, which has applied since 4 September 2025 and replaced the former Schedule 8 Code.

For employees who have completed probation, the Code requires appropriate evaluation, instruction, training, guidance or counselling and a reasonable opportunity for improvement before dismissal for continuing unsatisfactory performance. The employee must also be allowed to respond before dismissal.

The ultimate fairness enquiry asks whether the employee actually failed to meet the required standard, knew or could reasonably have known it, had a fair opportunity to achieve it, whether the standard was reasonably achievable and whether dismissal was appropriate.

The jurisprudence provides equally important guidance.

Gold Fields Mining distinguishes inability from culpable misconduct and requires the employer to consider whether the deficiency was genuinely attributable to the employee rather than external circumstances.

Damelin demonstrates why targets and improvement periods must be realistic.

Somyo and the current Code recognise that senior managers and highly skilled professionals may in appropriate circumstances require less warning because they can reasonably be expected to assess the adequacy of their own performance.

Probation receives a deliberately more flexible treatment, but it remains a fair assessment process rather than an unrestricted right of dismissal.

The practical lesson for employers is to treat poor performance as a problem to be diagnosed before it becomes a dismissal case.

Identify the standard.

Identify the shortfall.

Determine why the employee is failing.

Provide appropriate assistance.

Allow a realistic opportunity to improve.

Consider the employee’s response.

Then determine whether continued employment remains reasonably sustainable.

That process not only improves the employer’s prospects at the CCMA. It may solve the performance problem without dismissal being necessary at all.

What Is Dismissal for Poor Work Performance?

Dismissal for Poor Work Performance is the termination of employment because an employee is unable to achieve the performance standard reasonably required for the position.

It is ordinarily classified as incapacity rather than misconduct. The current Code addresses unsatisfactory post-probation performance under Part F, dealing with incapacity.

Can an Employee Be Dismissed for Poor Performance in South Africa?

Yes.

Dismissal can be fair where the employee fails to meet a required performance standard and the requirements of substantive and procedural fairness have been met.

The current Code requires consideration of knowledge of the standard, opportunity to meet it, achievability and whether dismissal is appropriate.

Must an Employer Give an Employee a Performance Improvement Plan?

The Code does not make fairness dependent upon a document carrying the specific title “Performance Improvement Plan”.

It requires the substance of a corrective process: appropriate evaluation, instruction, training, guidance or counselling followed by a reasonable opportunity for improvement.

A written PIP is nevertheless often useful evidence that those requirements were addressed.

How Long Must an Employee Be Given to Improve?

There is no universal statutory number of days.

The period must be reasonable in the circumstances.

The nature of the job, performance deficiency, frequency with which performance can meaningfully be measured and assistance required all matter.

Damelin v Solidarity obo Parkinson demonstrates that an unreasonably short period can undermine the fairness of dismissal.

Must the Employee Know the Performance Standard?

Yes, unless the circumstances are such that the employee could reasonably be expected to know it.

The current Code expressly directs decision-makers to consider whether the employee was aware, or could reasonably have been expected to be aware, of the required standard.

Must a Performance Target Be Achievable?

Yes.

The current Code expressly identifies reasonable achievability as part of the fairness enquiry.

An employer should therefore be capable of demonstrating that the performance target was realistic in the circumstances.

Is Poor Performance the Same as Misconduct?

No.

Poor performance generally concerns inability to meet a standard despite willingness and appropriate opportunity.

Misconduct concerns culpable conduct such as deliberate or negligent non-compliance with rules or duties.

Gold Fields Mining is leading authority on the importance of distinguishing the two.

Can an Employer Dismiss a Senior Manager Without a Warning?

Potentially, depending upon the circumstances.

Item 20(2) of the 2025 Code recognises that warning of possible dismissal may not always be required for managers or senior employees whose experience enables them to assess their own performance, or highly skilled professionals where departure from the standard could have severe consequences.

This is not a general exemption from fairness.

Is Poor Performance During Probation Treated Differently?

Yes.

Probation exists to evaluate performance and suitability before confirmation.

The 2025 Code states that reasons for dismissal during or at the expiry of probation may be less compelling than those required after probation, while still requiring reasonable guidance and an opportunity to make representations before dismissal or extension of probation.

Can an Employer Extend Probation?

Potentially.

The employee must be given an opportunity to make representations before the employer decides to extend probation, and those representations must be considered.

An extension should relate genuinely to the purpose of assessing performance or suitability rather than being used arbitrarily.

What If Poor Performance Is Caused by Ill Health?

The employer should investigate whether the problem is actually ill-health or injury incapacity rather than ordinary performance incapacity.

The 2025 Code separately requires investigation of ill-health incapacity and consideration of appropriate alternatives, including possible adaptation or alternative employment in cases of permanent incapacity.

Can Depression or Mental Illness Explain Poor Performance?

Potentially, depending upon the medical and factual evidence.

In Abels v University of Stellenbosch, the Labour Court found that the necessary connection between the employee’s depression and the established performance problems had not been shown on the facts, particularly given performance concerns predating the diagnosis and the employer’s accommodation efforts.

Each case must be investigated individually.

Does an Employer Have to Hold a Disciplinary Hearing for Poor Performance?

Poor performance is ordinarily incapacity rather than misconduct, so a conventional misconduct disciplinary process should not automatically be imposed.

The current Code requires an opportunity for the employee to respond to the allegations before dismissal.

The procedural emphasis is on a fair performance-management and response process rather than punitive discipline.

Can One Serious Performance Failure Justify Dismissal?

In exceptional circumstances, potentially.

The Code expressly recognises that employees exercising a high degree of professional skill may be treated differently where a departure from the required standard would have sufficiently serious consequences to justify dismissal.

The circumstances and seriousness of the failure remain critical.

How Long Does an Employee Have to Refer an Unfair Dismissal to the CCMA?

Ordinarily 30 days from the date of dismissal or, where later, the employer’s final decision to dismiss or uphold the dismissal.

Late referral requires condonation.

Who Must Prove That a Poor-Performance Dismissal Was Fair?

Once the employee establishes that a dismissal occurred, section 192(2) of the LRA places the burden on the employer to prove that the dismissal was fair.

The employer should therefore preserve the entire performance-management record.

References

Useful Links

South African Government – Code of Practice: Dismissal provides the official 2025 Code of Practice: Dismissal, which replaced Schedule 8 and now governs misconduct, probation, poor performance and other incapacity dismissals.

South African Government – Labour Relations Act 66 of 1995 provides official access to the LRA and its amendment history. It is the primary statutory source for dismissal fairness and dispute resolution.

Southern African Legal Information Institute provides free access to Labour Court and Labour Appeal Court judgments concerning poor work performance, probation, incapacity and unfair dismissal, including Gold Fields Mining, Somyo, Damelin and Palace Engineering.

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