HR Consulting Assistant: WHAT IS THE DIFFERENCE BETWEEN INCAPACITY AND MISCONDUCT?

INCAPACITY

Refers to when an employee is incompetent and inherently unable to meet fixed performance standards whether due to ill health or poor work performance. The employer is required to provide an employee with training and guidance, as well as the opportunity to improve, where the employee lacks the required skill or knowledge to perform a certain task.

MISCONDUCT

Refers to an employee’s failure to adhere to the employer’s rules and policies. In basic terms, misconduct is a behavioral issue of the employee. Such behavior's is normally deliberate or negligent, and employees can be held accountable for their actions. Misconduct can take various forms, including theft, fraud, dishonesty, insubordination, absence from work without permission, etc.

Every workplace must have a relevant disciplinary code. The disciplinary code is essential in ensuring that there are clear rules in the workplace, with appropriate sanctions, that employees can follow. When these rules are broken, the employer can apply progressive discipline.

PROOF OF INCAPACITY

(1) An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.

(2) The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.

(3) If it is not reasonably practicable for an employee who lives on the employer’s premises to obtain a medical certificate, the employer may not withhold payment in terms of subsection, unless the employer provides reasonable assistance to the employee to obtain the certification sick leave work according to the Basic Conditions of Employment Act.