When an employee isn’t delivering, frustration can build quickly. As a business owner or manager, it is natural to want a swift resolution when deadlines are repeatedly missed or targets fall short. But in the heat of the moment, it is easy to blur two very different workplace issues: poor performance and misconduct.
At OTP Law, we often remind our clients that how you label a problem dictates the legal path you must follow. Conflating a lack of skill with a breach of discipline is one of the most common—and costly—stumbling blocks for Singapore SMEs at the Tripartite Alliance for Dispute Management (TADM).
1. The Fundamental Difference: Can’t Do vs. Won’t Do
To choose the right approach, ask yourself a simple question: Is this a capability issue or a behavioral issue?
- Poor Performance (“Can’t Do”): The employee is trying, but lacks the necessary skill, experience, or capacity to meet the required standard. Examples include falling short of sales quotas, frequent technical mistakes despite effort, or struggling to adapt to a new system.
- Misconduct (“Won’t Do”): The employee has intentionally broken company rules, acted dishonestly, or refused to follow reasonable instructions. Examples include theft, unexcused absence, insubordination, or breaching confidentiality.
2. Why the Distinction Matters Under Singapore Law
Mixing up these two tracks creates significant legal risk under the Employment Act and Tripartite Guidelines on Wrongful Dismissal.
If You Treat Poor Performance as Misconduct:
Employers sometimes terminate an underperforming staff member immediately, citing “gross negligence” or “failure of duty” to avoid paying notice salary.
Under Section 14 of the Employment Act, summary dismissal (firing on the spot without notice) is reserved only for misconduct. If you fire an underperforming employee for misconduct without holding a formal Due Inquiry, the dismissal is almost automatically deemed wrongful by TADM mediators, leaving the company liable for compensation.
If You Treat Misconduct as Poor Performance:
Conversely, putting an employee who committed severe dishonesty or harassment onto a 60-day Performance Improvement Plan (PIP) sends mixed signals. It undermines your workplace culture and signals that policy breaches are simply “coaching opportunities” rather than disciplinary offenses.
3. How to Handle Each Situation Fairly
For Poor Performance:
- Communicate Early: Schedule an open, supportive meeting to highlight specific gaps between their output and job expectations.
- Implement a PIP: Provide reasonable time (typically 30 to 90 days) along with coaching or training resources.
- Document Progress: Keep objective records of weekly check-ins. If performance does not improve, you may proceed to end employment with contractual notice (or salary in lieu) under Sections 9 and 11 of the Employment Act.
For Misconduct:
- Investigate Promptly: Gather facts, emails, or witness statements objectively before reaching conclusions.
- Conduct a Due Inquiry: Inform the employee of the specific allegations in writing and allow them a fair chance to present their side.
- Apply Proportionate Disciplinary Action: Depending on severity, penalties may range from a formal warning to suspension or summary dismissal.
A Quick Checklist for Business Leaders
| Element | Poor Performance | Misconduct |
| Core Issue | Inability to meet output/quality standards | Breach of rules, trust, or duty |
| Primary Goal | Retrain, support, or manage out fairly | Maintain discipline and protect business integrity |
| Required Procedure | PIP with clear KPIs & reasonable timeline | Internal Investigation & Formal Due Inquiry |
| Legal Grounding | Tripartite Guidelines / Contractual Notice | Section 14, Employment Act |
Human Relationships First
Clear legal boundaries exist not to create friction, but to ensure everyone is treated with dignity and fairness. When leaders approach performance and conduct issues with clarity, transparency, and empathy, workplace disputes can almost always be resolved constructively—or avoided altogether.
If you are navigating a complex employee situation and want to ensure your business stays protected while doing right by your people, reach out to OTP Law Corporation for a practical consultation.
