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Article 3/2025

Schedule 8 to the LRA contains substantive and procedural requirements applicable to misconduct and incapacity scenarios. What is the suggested approach to determine whether, when a workplace rule has been breached, specific items of Schedule 8 are applicable in determining whether there is compliance with such fairness requirements?

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SCENARIO 1

If the applicable workplace rule is breached in a manner that entails the existence of mens rea (intention or negligence on the part of the employee) and wrongfulness is present:

  • the breach amounts to misconduct
  • items 1 to 5 and 7 of Schedule 8 are applicable

SCENARIO 2

If the applicable workplace rule (in this scenario entailing that you are not permitted to participate in unprotected strike action or the collective withdrawal of labour) is breached in a manner that entails the existence of mens rea (intention or negligence on the part of the employee) and wrongfulness is present:

  • the breach amounts to misconduct
  • items 6 and 7 of Schedule 8 are applicable

SCENARIO 3

If the applicable workplace rule is breached in a manner that entails the absence of mens rea (the employee neither intentionally nor negligently breached the workplace rule) and wrongfulness is present and, furthermore, such breach is on the basis of the ill-health or injury of the employee:

  • the breach amounts to incapacity ill-health/injury
  • items 10 and 11 of Schedule 8 are applicable

SCENARIO 4

If the applicable workplace rule is breached in a manner that entails the absence of mens rea (i e the employee does not intentionally or negligently breach such rule) and wrongfulness is present and, furthermore, such breach is not on the basis of the ill-health/injury of the applicable employee:

  • then, by default, the breach amounts to incapacity poor work performance
  • items 8 and 9 of Schedule 8 are applicable

From the above, the following are, amongst others, evident:

  1. it is not the nature of the workplace rule that determines whether a misconduct or incapacity procedure and approach should be adopted;
  2. it is the manner in terms of which the workplace rule is breached (and not the upfront categorisation of such workplace rule) that determines whether a misconduct or incapacity approach should be adopted; and
  3. thus, the mere fact that a workplace rule is contained in a disciplinary code does not necessarily mean that a misconduct approach should be adopted – similarly, the mere fact that the workplace rule is contained in a performance policy, does not necessarily mean that an incapacity poor work performance approach must be adopted when there are breaches of such workplace rule.
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