Incapacity and misconduct: Distinct proceedings that must not be conflated

It is well established in South African labour law that incapacity proceedings are no-fault based, whereas misconduct proceedings are fault based. These processes entail different concepts and procedures, and an employer may not conflate the two. Where an employee's conduct arises from an inability to perform, the matter must be addressed through incapacity procedures; where it arises from transgression or misbehaviour, it falls within the realm of misconduct.

1 Apr 2026 1 min read Employment Law Alert Article

An employer cannot charge an employee with poor performance and simultaneously allege misconduct based on the same set of facts. It is either the one or the other. In Midas Group Komatipoort v NUMSA and others [2018] ZALCJHB 83 the Court held:

'The applicant's approach in this matter was thus fundamentally flawed. It could not 'charge' the second and third respondents with poor performance, and then also insubordination (misconduct) based on the exact same set of facts and causes of complaint. It is either the one or the other. So, either the second and third respondent received instructions which they in a culpable and blameworthy fashion failed or refused to carry out, or they were not capable or unable to perform the work they were instructed to do. It cannot be both.'

A recent Labour Court judgment in Propay Proprietary Ltd v Nicolaas Marthinus Stengel and others JR2841/23 confirmed this principle, reinforcing that a failure to maintain the distinction may renders any resulting dismissal procedurally unfair.

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