Misconduct Versus Underperformance

Misconduct vs. Poor Performance

Employee Performance

20 June 2025 (Last updated 3 Dec 2025)

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Many employers confuse employee misconduct with unsatisfactory performance. This can be costly for the employer if the confusion results in an incorrect process, exposing them to unjustified disadvantage or dismissal claims.

A disciplinary procedure is relatively short, which is intended as a corrective measure to address misconduct related to an employee’s wilful or negligent behaviour.

Whereas a procedure addressing unsatisfactory performance is ongoing for a longer period of time where the employee’s competence or skills are addressed in relation to their ability to do their job effectively.

What is Poor Performance?

Poor performance or underperformance is when an employee is not meeting the standards and expectations of their role in the company. Many cases of poor performance are unintentional. Sometimes an employee will be unaware they are underperforming and won’t change unless they are told otherwise.

Poor performance often appears as:

  • Inability to fulfil the standards and expectations of their role
  • Failing to ensure work is completed within a required timeframe
  • Repeated errors in work.

The most common reasons for underperformance include:

  • Misunderstanding of standards and expectations for the job
  • Not enough training or support
  • Personal reasons or sickness
  • Work-related stress
  • Workplace bullying
  • Low morale or job satisfaction.

What is Misconduct?

Misconduct refers to wilful or negligent behaviour in the workplace which is unacceptable and breaks the rules, policies or that is inconsistent with the requirements of the employment agreement.

Specific types of misconduct and their consequences do not need to be listed in an employment agreement or employee handbook, although they often are.

Common examples of misconduct include:

  • Repeated lateness
  • Poor personal presentation
  • Behaving inappropriately towards other employees
  • Misuse of company computers and personal social media accounts
  • Making threatening and abusive statements or gestures
  • Drug and alcohol abuse in the workplace
  • Theft
  • Corruption.

Misconduct vs Poor Performance – Identifying the Difference

The difference is quite simple. Misconduct has more to do with the employee's behaviour (their will) where there has been a breach of the employment agreement or company rule or policy. Whereas unsatisfactory performance involves an employee's ability to do their job or their failure to meet the standards required of their role (their skill). It is important to be clear on the difference as misconduct and performance are addressed via different processes.

What is the difference in the processes in respect of misconduct and performance concerns?

In cases of misconduct, the employer will follow a disciplinary process, which will involve a disciplinary meeting where the employee is afforded an opportunity to respond to allegations against them, which response should be genuinely considered before the employer decides on an outcome. Potential outcomes of a disciplinary process could be a written warning, final written warning, notice dismissal or a summary dismissal.

Where there are concerns about the employee’s performance, the employer should follow a performance management process. This process generally sets out the relevant standards to be met when performing their duties and where the employee is falling short of these standards. Usually, a performance management plan is implemented which sets out the measures that will be taken by the employee and the employer for the employee’s performance to meet the required standards. This can include training and development or may be as simple as pointing out the steps the employee should follow when doing certain tasks. The employee is given a reasonable time to improve. If there is little or no improvement, it may be necessary to warn the employee and start another performance management process

Are you struggling to manage staff performance? Wondering what to do when an employee is underperforming? Peninsula works with Kiwi business owners offering them tailored HR resources and advice including performance management plans. Call our team on 0800 215 036 to find out how we can help you.

This article is for general information purposes only and does not constitute as business or legal advice and should not be relied upon as such. It does not take into consideration your specific business, industry or circumstances. You should seek legal or other professional advice regarding matters as they relate to you or your business. To the maximum extent permitted by law, Peninsula Group disclaim all liability for any errors or omissions contained in this information or any failure to update or correct this information. It is your responsibility to assess and verify the accuracy, completeness, and reliability of the information in this article.

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Employee Performance

Managing Poor Performance

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Employee Performance

Performance appraisals

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Due to the close relationship between a manager and their employee, appraisals can become about likability and not performance strictly. Not all roles may have clear metrics or figures that can signify good performance or progress. Key things for employers to remember Appraisals should be an ongoing process. Through the year, ensure that managers and supervisors feel comfortable to engage with employees. They should establish goals, note progress, and provide feedback consistently and regularly. You also don’t necessarily need to wait till appraisal to give your employees feedback or get feedback from them. You can set up informal chats with them once or twice a month to keep track of progress and any other support they may need. Managing poor performance Poor performance can occur for many reasons. An employee may be suffering from low morale, lack certain skills or abilities, or the issue could relate to problems outside of the workplace (i.e. problems at home). Regardless, it is crucial to identify the cause of the underperformance first before you jump to conclusions. First, carry out a general observation of the employee in question. Do they appear to be stressed, upset, or over-worked? How do they interact with other staff and customers? Even a few basic observations may clue you in to what is really going on. Secondly, reach out to other team members and find out if they have noticed any strange behaviour lately. Don’t pry though! You do not want the team to feel as if they are being investigated. Otherwise, this may reduce morale and productivity. From there, have a meeting with the employee. Give clear examples as to where the employee has underperformed, let them share their side of the story, and listen carefully. Depending on the reason for the underperformance, the next step is most likely to provide the necessary guidance, training, and education to improve the situation. When managing underperformance, always set clear, reasonable goals for the employee to focus on and reach. And carry out follow-up meetings to ensure the program is achieving the desired outcomes. Peninsula can advise you on how to manage your employee’s performance effectively and implement feedback processes.  Establish effective policies with Peninsula Communication between employers and employees is key to productive workplaces. Poorly handled appraisals can be detrimental to your company and also cause attrition. You need a bespoke approach and tailored advice that allows you to create effective policies and procedures for your business. Peninsula understands the specific needs of your business and ensures that we provide the customised resources and help you need.

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