Introduction
Employers will encounter situation from time to time where an employee is not
performing to a standard required by the employer. How can the employer
address this issue with the employee ? What are the requisite steps that the
employer is required to undertake before any termination of employment is
likely to be regarded as fair ?
Additionally, employers may be faced with a situation where an incident has
occurred where the employer believes that the employee concerned has acted
improperly. Examples may include where an employee might have become
involved in a fight or provided fraudulent documents. How should an employer
approach this situation ?
Accordingly, there are two major categories of conduct which are the subject of
performance management or disciplinary action {which may include
termination of employment}:
(i) Performance related conduct; and
(ii) Inappropriate conduct or misconduct.
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Poor Performance
Other than issues of misconduct, the usual reason for wanting to terminate
an employee’s employment is that they are not performing their job to the
employer’s satisfaction. Employers must ensure that they have done
everything reasonably in their power to assist the employee to meet these
expectations:
• There should be a clear job description.
• Clear goals and achievement timeframes should be established which
are reasonable.
• Performance should be regularly reviewed using a performance
review/appraisal process which helps the employee to understand
which areas they are doing well and which areas they are falling behind
and provide opportunities for training and improvement.
• If, after a reasonable time, the employee’s performance still does not
meet expectations, then it is possibly time for the employer to seek
expert external advice on your position before going further.
• The usual next step is to develop a more detailed plan for the
employee and advise that if their performance does not improve to
the expected benchmarks within a certain reasonable period of time,
their employment may be terminated.
• This cycle should be repeated, with a shorter time frame in place.
• If at the end of this process, the employee’s performance has not
improved to the expected standard, then their employment may be
terminated on the appropriate notice.
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Majority of performance related disciplinary action has its roots in a lack of
communication and guidance. Often, an employee’s performance will not
improve unless the employer takes a proactive stance towards helping the
employee. Consequently, termination of employment is often an inevitable
outcome of the absence of any form of performance appraisal or management,
whether by the employee resigning or the employer sacking the employee.
It is important that any termination be both substantively and procedurally fair
{as well as not being for an invalid reason, discriminatory or in breach of an
employee’s workplace rights}.
The process set out above is not simple or easy but is the only way that the
danger of a claim can be minimised. Detailed file notes of conversations and
copies of letters must be kept.
It involves process of:
• Identifying the performance gap – the performance appraisal process is
one way which this occurs.
• Identifying the causes of the performance deficiencies.
• Making a decision whether it is possible to close the performance
deficiency.
• Developing and implementing a strategy to close the gap.
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Options for improving performance include:
• Positive reinforcement programs that seek to identify and clarify the
desired behaviours and provide rewards and recognition for this
behaviour provided by the supervisor.
• Training, development and learning programs that are designed to deal
with the particular lack of skill or knowledge.
• Employee assistance programs that are designed to assist the employees
with their work and non-work responsibilities.
• Work/life balance programs that are designed to assist employees with
their work and non-work responsibilities.
• Employee counselling that is designed to focus on problem solving and
goal setting. It requires that the employee is aware of the problem, the
organisation’s standards and the reasons for the poor performance are
explained. Necessary actions designed to improve the performance are
discussed agreed on and the discussions with the employee are
documented.
• Negative behavioural strategies or disciplinary action are useful in
situations when it is critical for the employee to be aware of their poor
performance and when it is important to signal to other employees the
standards of expected behaviour.
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Misconduct
Misconduct commonly takes the form of breach of organisation policies and
procedures.
Gross misconduct commonly involves dishonesty or fraudulent behaviour or
other criminal conduct, for example:
• Fighting in the workplace.
• Failure to comply with safety requirements.
• Sexual harassment.
• Drunkenness or drug use.
• Failure to perform services with no reasonable explanation.
• Insolent or abusive behaviour in extreme or repeated instances.
• False representation of qualifications.
In these situations, an investigation process should take place and the employee
should be allowed to respond to the allegations against them before a decision
is made about their conduct and the potential penalty.
A good investigation should include the following:
• The organisation should have clear policies about acceptable behaviour.
• It is necessary to act promptly on learning about a matter that may
amount to misconduct.
• The employer should investigate the allegation to determine whether
there is any basis to the allegation, whether there is any reasonable
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explanation for it, and whether remedial action is required or disciplinary
action is appropriate.
• It may be appropriate to suspend the employee whilst the investigation
takes place depending on the seriousness of the allegations.
• The investigation should be carried out by someone who is not connected
with the subject matter of the investigation.
• All relevant witnesses should be interviewed and relevant documents
gathered.
• The employee should be allowed reasonable representation, if required.
• The allegations should be put to the employee in detail and the employee
allowed to respond.
• Detailed written records should be kept.
Once a determination about the allegation is made, there needs to be a
consideration of appropriate penalty and the employee should be given a
further opportunity to respond on the issue of penalty before a final
determination is made. Possible outcomes may include:
• Counselling the employee.
• Warnings.
• Termination, either on notice or immediately.
The type of investigation, its detail and the subsequent allegation, response and
decision process very much depend on the type of allegation and its seriousness.
Any process must be substantively and procedurally fair and it is important for
the employer not to prejudge the matters. A decision maker must be satisfied
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of the requisite matters on the balance of probabilities. Procedural fairness
involves:
• All parties to a decision having the opportunity to be heard and all
relevant arguments being considered before a decision is made.
• People having an opportunity to present their view and respond to any
adverse material before decisions are made affecting them.
• A presumption of innocence, that is, a person being innocent until proven
guilty.
• Decision makers acting fairly without actual or perceived bias.
• Decision makers acting on the basis of all relevant facts.
In practice, it is often necessary for some practical balance to be achieved
depending on the severity of the matter and the possible consequences.
Common mistakes in investigations include:
• Resorting to investigation when conciliation/mediation is appropriate.
• Taking too long to initiate an investigation.
• Taking too long to advise the employee.
• Failing to put all or specific allegations to the employee.
• Failing to allow the employee adequate representation.
• Not taking specific complaint from the complainant.
• Failing to interview the complainant.
• Not allowing the employee time to consider the allegation and rebut.
• Not allowing information given in confidence to be rebutted by the
employee.
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• Failure to act consistently in comparison to previous occurrences of the
conduct.
Before taking disciplinary action, it is recommended that employers consider the
following issues:
• Was the employee aware of the performance standards or the policy ?
• Was the grievance or performance issue raised as soon as it arose ?
• Was the employee given an opportunity to respond to the allegations of
misconduct or poor performance ?
• Was the employee’s response considered before any disciplinary action
was taken ?
• Was the employee given an appropriate opportunity to improve
performance prior to disciplinary action being taken ?
• Was the suspension of the employee on pay necessary to properly
investigate the performance or conduct issue in the absence of the
employee ?
• Was the employee given sufficient information to enable the employee to
respond to the performance issue or allegations ?
• Was the employee given sufficient time to prepare a response ?
• Have all relevant witnesses been interviewed ?
• Have any issues raised by the employee in the employee’s defence been
properly explored ?
• Is there a valid reason for termination or the disciplinary action of the
employee which is supported by evidence ?
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• Has the employee had the opportunity to respond to both the reasons for
the termination or disciplinary action, and to the decision of the employer
as to the action to be taken ?
RN LEGAL has assisted many clients with employment-related matters. RN
LEGAL has the experience, expertise, and resources to help you with your
employment-related matter.
Contact RN LEGAL on (02) 9191 9293 or mail@rnlegal.org if you, or someone
you know, requires advice or assistance in relation to any aspect of
employment
