Performance, Misconduct, Incapacity & Probation: A Field Guide for Managers Under the New Code
When someone’s underperforming or acting out, category errors cost you cases. Here’s how to diagnose and act, cleanly.
Misconduct vs Poor Performance: the diagnostic
Misconduct = a breached rule (the rule exists, is reasonable, was known, and was broken).
Poor performance (incapacity: performance) = can’t meet the required standard despite guidance (wrong fit, skill gap, changed job, etc.).
Grey zone (negligence): Was it slackness (misconduct) or inability (performance)? Diagnose before you choose a route.
Manager move: Write your first line as a diagnosis: “This is [misconduct / performance] because [reason].” It forces clarity and the right process.
Incapacity is broader than you think
It’s not just performance. Imprisonment, expired work permit, or lost security clearance can make the job illegal or impossible - classic incapacity, not misconduct.
Manager move: When external facts make work impossible, document the incapacity basis and alternatives considered (temporary reassignment, unpaid leave, etc.).
Probation: performance and suitability
Probation isn’t only about KPIs; suitability/culture fit can legitimately count - if it’s serious and defensible. Commissioners are happier to accept “less convincing reasons” during probation rather than after, but not vibes and bias. Typical lengths: ~90 days (longer for senior roles is possible, abuse isn’t).
Manager move (how to run it):
Define the model: “A model employee in this role does X/Y/Z; avoids A/B.”
Short cadence: fortnightly check-ins with two-line email summaries.
Traffic-light call at Day 60/75: retain / extend with plan / exit.
No churn games: cycling people through probation to keep the seat warm is misuse.
When warnings matter (and when they don’t)
For juniors on performance: counsel, set standards, give time to improve (PIP).
For managers/senior roles: far less hand-holding - surprise dismissals mean you failed to signal, but “I had no idea” shouldn’t be plausible for leaders.
For serious misconduct: one act can justify dismissal.
Manager move: Keep a lightweight PIP template (3 goals, measures, support, dates). For managers, use board-level outcome metrics and monthly written feedback - no sugar-coating.
Sanction factors that actually move the needle
Gravity of the act, role seniority, trust impact.
Consistency with similar cases (you can still improve policy after a past mis-step).
Restorative signals (taking responsibility, making it right) weigh in the employee’s favor.
Manager move: Add a “trust impact” line to every sanction memo. If trust is broken (theft, serious dishonesty), coaching won’t fix it.
Speed vs fairness
You can move fast and be fair. Misconduct processes can be short (hear them, decide). Performance needs a realistic runway; probation has a built-in clock. Knee-jerk firings make for expensive lessons.
Manager move: Before any termination, run a 5-minute pre-mortem: “How does this look to a commissioner reading only our documents?”
Quick Flow
Issue → Diagnose → Route → Evidence → Decision → Sanction Fit → Communicate
Diagnose first (misconduct/performance/incapacity).
Match the route to the diagnosis.
Keep evidence manager-simple (meeting note + confirmation email).
Decide and explain why this sanction beats the alternatives.
