Tried but Couldn’t or Could but Didn’t? Why Poor Performance Cases Are Surging and What Employers Must Get Right

Performance on the Edge: Managing Underperformance in a Rapidly Changing Workplace

As the workplace continues to evolve — driven by technology, hybrid models, and shifting skill demands — poor performance disputes are likely to become more common and more complex. Employers are having to recalibrate what “acceptable performance” looks like in a world where job content, tools, and expectations are changing faster than ever before. Three recent cases shed light on the evolving boundaries between poor performance due to incapacity or misconduct and the practical steps employers should take to stay legally compliant and fair.

1. Poor Performance (Ill‑Health): Abels v Stellenbosch University

   In this case, a long‑serving faculty administrator faced dismissal after years of underperformance despite counselling, feedback, and a structured performance improvement plan (PIP). The employee later argued that depression was the real cause of his inability to perform and that the university should have followed an ill‑health incapacity process.
   

   The court, however, found that the dominant reason for dismissal was poor performance, which both pre‑dated and continued despite the diagnosis and support. Crucially, there was no proven causal link between the mental health condition and the inability to meet work standards.

   Key takeaway: A medical diagnosis does not automatically transform poor performance into incapacity. What matters is evidence of causation. Employers must apply and document a full performance‑management process — setting standards, providing guidance, allowing time to improve — while still enquiring into possible health issues and making reasonable accommodation.
   

2. Procedural Fairness Extends to Litigation: Pule v HPCSA

   Here, the Labour Court dealt mainly with a postponed hearing, occasioned by unavailable witnesses in a poor performance dispute. The judgment reaffirmed that even sound substantive cases can be undermined if procedural fairness in litigation is compromised.

   The court warned that fairness extends beyond the internal disciplinary or performance process to the conduct of the trial itself — both parties must be given proper opportunity to call witnesses, especially in fact‑sensitive performance dismissals.
   

   Key takeaway: Plan ahead for litigation. Identify and secure attendance of your key witnesses early, as their availability can determine whether a dismissal ultimately survives judicial scrutiny.
   

3. Misconduct or Poor Performance? Cape Thai Restaurant v CCMA and Others

   This case revisited a frequent point of confusion: whether an employee’s shortcomings amount to inability (poor performance) or wilfulness/negligence (misconduct). The court reiterated the practical test — if the employee tried but could not meet the required standard, it’s poor performance; if the employee could but did not, it’s misconduct.
   

   It further cautioned arbitrators against “re‑charging” employees or reframing the employer’s case. Their role is to test fairness based on the charge actually brought, not to invent new characterisations afterwards.
   

   Key takeaway: Diagnose the real problem upfront. Mis‑labelling underperformance as misconduct (or vice versa) risks procedural unfairness and may render a dismissal vulnerable on review. Build evidence that clearly shows whether the issue was inability or deliberate non‑compliance.

Looking Ahead: From Skills Deficits to Adaptability Gaps

As technology reshapes almost every job function, we’ll see growing performance pressure tied to digital competence, data literacy, and adaptability. The skills mismatch that’s emerging will inevitably reflect in more poor‑performance cases — not necessarily due to laziness or unwillingness, but because job roles are evolving faster than employees’ ability to keep up.

For employers, this underscores the need for:

• Clear performance standards aligned with modern role expectations.

• Training and reskilling interventions before punitive action.

• Careful documentation and fair, staged PIP processes.

• A nuanced understanding of when to pivot to an incapacity route.

Handled properly, performance management can still be a vehicle for growth — but managed poorly, it remains one of the most contested areas in labour law.

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