One of the easiest ways to weaken an otherwise manageable employment matter is to start with the wrong label. An employee misses deadlines, makes repeated errors or fails to meet output targets. The manager is frustrated, so the matter is treated as misconduct. But the real question should come first: is the employee unwilling to perform, or unable to perform to the required standard?
What is poor performance?
Poor performance is generally a capability issue. The employee is working, but the required standard is not being achieved. The current Code of Good Practice: Dismissal requires an employer, after probation, to provide appropriate evaluation, instruction, training, guidance or counselling and a reasonable opportunity to improve before dismissal for unsatisfactory performance is considered.
The Code also directs attention to whether the employee knew, or could reasonably have been expected to know, the required performance standard; whether the employee had a fair opportunity to meet it; whether the standard was reasonably achievable; and whether dismissal is appropriate in the circumstances.
What is misconduct?
Misconduct is about a breach of a workplace rule or standard for which the employee can fairly be held responsible. Examples can include deliberate refusal to follow a reasonable instruction, dishonesty, unauthorised absence, insubordination, negligence or other culpable breaches depending on the facts.
The Code recognises progressive discipline for many forms of misconduct, while also recognising that serious misconduct may justify stronger action where continuation of the employment relationship becomes intolerable.
The practical test managers should use
Ask these questions before deciding on a process:
- What exact standard or instruction was not met?
- Was the standard clear, reasonable and known to the employee?
- Does the employee lack the skill, knowledge, resources or ability to meet it?
- Has the employee previously demonstrated the ability but is now deliberately refusing or disregarding the requirement?
- Is there evidence of negligence or wilful conduct, rather than mere inability?
- What support, guidance, training or counselling has already been provided?
Why the distinction matters
If the underlying problem is capability, a disciplinary charge may not cure the employer's weak point: the employee may never have been given a fair opportunity to reach a clear and achievable standard. Conversely, if the employee is capable but deliberately refuses a reasonable instruction, endlessly extending performance counselling may avoid addressing the actual misconduct.
There are also cases where performance and misconduct overlap. For example, repeated careless work could involve negligence, while repeated failure to meet a target despite genuine effort may remain a performance issue. The label should follow the evidence—not the manager's frustration.
What a defensible performance process should show
- A defined and reasonably achievable performance standard.
- Evidence that the employee knew what was expected.
- Specific examples of the performance gap.
- Appropriate guidance, instruction, training or counselling.
- A reasonable improvement period that fits the job and the problem.
- Meaningful review meetings and records of the employee's response.
- A fair opportunity for the employee to respond before a dismissal decision.
Do not turn every performance problem into a charge sheet
The strongest employer process is not always the most punitive one. It is the one that correctly identifies the problem and responds proportionately. When the process matches the reason, managers are more likely to improve performance where improvement is possible—and to defend the final decision where it is not.
Legal framework & sources
This article provides general employer guidance and is not a substitute for advice on the facts of a specific matter. Key source material used: