Negligence and poor work performance are two issues often confused in the workplace. As such, it should be dealt with carefully to avoid any dire consequences should a dismissal for any of these two reasons be taken to the CCMA or Bargaining Council.


The difference is beautifully explained in the matter of ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman NO (2013) 34 ILJ 2347 (LC) where honourable Snyman AJ differentiated between the concepts by asking two simple questions: “Did the employee try but could not?” and “could the employee do it, but did not?”.  If the answer to the first question is “yes”, this would constitute poor work performance as the employee has tried to achieve what is expected of him, but is unable to do so or apply the necessary care. If the answer to the second question is “yes”, this would constitute misconduct. The employee is fully capable to do what is expected of him, but fails to achieve what is expected which can only arise from the deliberate failure to take care.


Negligence is typically a situation where an employee has all the necessary training and experience to do the work to requirement, and have done so in the past, however fails to comply on some occasions such as a driver failing to do the necessary vehicle checks before starting a trip, despite having done the checks properly in the past.


Poor work performance on the other hand would be a driver doing the necessary checks, however not properly or to requirement, despite his best efforts and receiving all the necessary training and guidance.  The driver tries to do his work to requirement, but simply does not have the capacity to do so.


Negligence (misconduct) would require that an employee be charged with negligence or gross negligence (depending on the severity) and that a disciplinary enquiry  be held, where as poor work performance (incapacity) require counselling sessions during which the performance standard is explained to the employee and that the employee is failing the meet the required standard.  It should also be ascertained if the employee is aware of the required standard the employee should be given a fair opportunity to meet the required standard. The procedure to be followed would differ if the employee is on probation or not.


In conclusion negligence is a “fault” based misconduct where as poor work performance is regarded as “no fault”. Therefor it is of utmost importance to differentiate and treat these as the separate issues that they are.


Article by: Engela Venter

CEO Dispute Resolution Official – Pretoria