THE LEGAL DISTINCTION BETWEEN MISCONDUCT, INCAPACITY & POOR PERFORMANCE

Written by Hulisani Ravhudzulo

The Hairdressing, Cosmetology, Beauty, and Skincare Industry is one of the most service-driven sectors in South Africa. Establishments within this sector rely heavily on employee skill, professionalism, client care, hygiene compliance, and operational efficiency. Hairdressers, nail technicians, beauty therapists, barbers, receptionists, and establishment managers are expected to perform at high standards because client satisfaction directly impacts establishment profitability and reputation.

When workplace issues arise relating to employee conduct or performance, employers often make the mistake of grouping all employee shortcomings under disciplinary misconduct. However, South African labour law distinguishes between misconduct, poor work performance, incapacity, and ill health, and each requires a different legal approach.

The failure to correctly identify whether an employee’s issue is based on wrongdoing, inability, or health limitations may result in unfair dismissals and disputes before the Commission for Conciliation, Mediation and Arbitration (CCMA) or the National Bargaining Council for the Hairdressing, Cosmetology, Beauty and Skincare Industry (HCSBC).

These distinctions are primarily governed by the Labour Relations Act 66 of 1995, particularly the 2025 Code of Good Practice: Dismissal (replacing Schedule 8), which provides guidance for employers on fair dismissal procedures.

Misconduct: When the Employee is at Fault

Misconduct occurs when an employee deliberately, negligently, or recklessly breaks workplace rules despite being capable of complying with them. Misconduct is fault-based because the employee’s actions are blameworthy.

In the hairdressing and beauty sector, misconduct may include:

• Theft of establishment products or cash.

• Fraudulent clocking or manipulating attendance systems.

• Refusal to follow hygiene protocols.

• Intoxication at work.

• Insubordination toward management.

• Abuse of clients or colleagues.

• Deliberate damage to establishment equipment.

• Unauthorised discounts to clients.

For example, a nail technician who knowingly fails to sterilise equipment after repeated warnings may expose clients to infections. This would likely amount to misconduct because the employee intentionally ignored health and safety protocols.

Item 7 of the 2025 Code requires employers to determine:

• Whether a workplace rule existed.

• Whether the employee knew the rule.

• Whether the rule was reasonable.

• Whether the rule was consistently applied.

• Whether dismissal is an appropriate sanction.

Employers must conduct fair disciplinary hearings before imposing dismissal.

In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others, the Constitutional Court emphasized fairness when determining dismissal sanctions.

Poor Work Performance: Lack of Skill or Competence

Poor performance occurs when an employee wants to perform their duties but lacks the required skill, competence, efficiency, or ability.

This is common in beauty-related roles where technical expertise is essential.

Examples include:

• A hairdresser repeatedly performs poor-quality hair colouring.

• A beauty therapist is failing to properly complete eyelash installations.

• A skincare therapist is receiving repeated complaints about treatment quality.

• A receptionist is incorrectly managing bookings.

• A barber consistently takes excessive time to complete services.

Unlike misconduct, poor performance does not involve intentional wrongdoing.

Items 8 and 9 of the 2025 Code require employers to first:

• Set clear performance standards.

• Ensure employees understand expectations.

• Provide proper training.

• Offer counselling and coaching.

• Allow reasonable time for improvement.

• Consider alternatives to dismissal.

For example, if a junior beauty therapist struggles with advanced skincare procedures because of insufficient training, the employer must first provide development support.

In JDG Trading (Pty) Ltd t/a Russells v Whitcher NO, the court confirmed that employees should be given an opportunity to improve before dismissal.

Incapacity: Inability to Perform Work Duties

Incapacity refers broadly to situations where employees are unable to perform their work duties because of reasons beyond their control. This may include poor health, injury, disability, or other operational limitations.

In the beauty industry, incapacity may arise where:

• A stylist develops repetitive strain injuries.

• A barber suffers permanent hand injuries.

• A therapist cannot stand for long periods due to physical limitations.

• A receptionist loses vision, affecting administrative duties.

The employer must investigate whether the incapacity is temporary or permanent and whether accommodation is possible.

Possible accommodations include:

• Reduced hours.

• Alternative duties.

• Modified workstations.

• Temporary reassignment.

• Additional support staff.

Ill Health: Medical Conditions Affecting Work Performance

Ill health is a specific form of incapacity that arises when an employee’s medical condition prevents them from fulfilling their normal duties.

The beauty and cosmetology sector presents several health risks due to physical demands and chemical exposure.

Examples include:

• Respiratory complications from acrylic nail chemicals.

• Skin allergies caused by beauty products.

• Chronic back pain from prolonged standing.

• Pregnancy-related medical complications.

• Recovery from surgery.

• Mental exhaustion or stress-related illnesses.

Under Items 10 and 11 of the 2025 Code, employers must properly investigate ill-health dismissals.

This includes assessing:

• Medical reports.

• Duration of illness.

• Probability of recovery.

• Operational requirements.

• Reasonable accommodation measures.

Employers should consult employees before making decisions.

In Standard Bank of South Africa v CCMA and Others, the court emphasized proper incapacity investigations before dismissal. Similarly, IMATU obo Strydom v Witzenberg Municipality highlighted employers’ obligations to reasonably accommodate employees affected by disability or illness.

Why Employers Commonly Get It Wrong

Many employers incorrectly classify employee issues.

Examples include:

• Treating repeated medical absences as absenteeism misconduct.

• Charging an employee with negligence when poor performance results from a lack of training.

• Dismissing an employee for reduced productivity caused by chronic illness.

These mistakes often lead to unfair dismissal disputes.

The Importance of the Code of Good Practice

The 2025 Code of Good Practice promotes fairness by ensuring that employers use the correct process.

• Misconduct requires discipline.

• Poor performance requires development and counselling.

• Incapacity requires investigation.

• Ill health requires medical assessment and accommodation.

Employers in the beauty sector should maintain:

• Clear workplace rules.

• Training records.

• Performance assessments.

• Medical consultation records.

• Health and safety policies.

In conclusion, the distinction between misconduct, poor performance, incapacity, and ill health is crucial in the Hairdressing, Beauty, Cosmetology, and Skincare industry.

Employers must determine whether the employee is unwilling to comply, unable due to lack of skill, unable due to incapacity, or medically unfit due to ill health.

Applying the correct legal framework under the 2025 Code of Good Practice ensures fairness, protects employee rights, and helps establishments avoid costly labour disputes.