• Ron Jones

MANAGING PERFORMANCE AND MISCONDUCT

As a manager you will often have to deal with staff whose performance or conduct is less than satisfactory and which requires a level of intervention on your part.



As a manager you will often have to deal with staff whose performance or conduct is less than satisfactory and which requires a level of intervention on your part.

The extent of that intervention will vary according to the nature of the issue of concern and the past performance of the staff member concerned. If the performance issues seem to be inconsistent with past performance, then you should check in with the employee as to whether other factors are at play: it would be inappropriate to continue with a performance management process if the issues have arisen from, for example, family health concerns.

In dealing with performance issues, these are often resolved easily if managed correctly.

Misconduct issues, however, can sometimes be more complex and require more careful management

As a manager there is one important issue that you will need to assess at each stage in the process: is the nature of the intervention intended to be of assistance to the staff member or is it intended to be applied as a further step in moving towards the termination of the employee’s employment. Special care needs to be taken to avoid any claim of unfair or adverse treatment that might lead to a claim for unfair dismissal or a claim for worker’s compensation because the right process was not followed.


It is also worth specifying that whilst most performance issues might begin with an informal and verbal process, this is unlikely to be the case with issues relating to misconduct.


This document is intended to provide you with a process for managing staff performance and misconduct issues. In implementing the process outlined you should at all times seek advice from our HR Adviser Ron Jones who can ensure that the correct process is being followed.

PERFORMANCE

All staff are appointed to undertake certain duties and take responsibility for particular functions.


These duties and responsibilities are usually set out in a job description and form the basis for any assessment of overall performance.


Performance Reviews


There are two types of performance reviews: regular reviews and annual reviews.


Regular reviews occur during the day-to-day business as usual processes and are often in the form of staff meetings, one-on-one discussions and ad-hoc feedback. Such discussions enable immediate and timely check ins to ensure the work is proceeding as planned and provide an opportunity for any training or support to be identified and implemented.


These regular discussions should also address any concerns that impact on the business.


Addressing these concerns is set out in the next section.

In addition to regular reviews, an annual review process allows for more substantive matters to be discussed, such as performance targets, achievements and development plans.


The annual review process should not be used to address performance concerns that should have been the subject of a regular review process.

If performance concerns that have been identified from the regular reviews still remain unresolved at the time of an annual review it may be appropriate to delay the annual review until they have been resolved.


Any performance discussion with staff can create anxiety if there is no respect or trust in the workplace: your performance as a manager is to establish the right culture where a discussion about performance is just a normal business-as-usual approach and which doesn’t create anxiety.

Good performance management is not about filling in forms – it is all about having discussions in a timely and appropriate manner.

Addressing Performance Concerns

The object of addressing any performance concerns is to improve the staff member’s performance so that once again they can be a meaningful contributor to the team.

It is important to remember that if you need to have a discussion with someone about their performance, there could be a number of reasons for this. They may be suffering from ill-health; they may have some personal issues impacting on their work; they may be undertaking work they are not properly trained or skilled for; they may not be appropriate for the job. It is important in the first instance to understand the underlying cause so this can be addressed.


The steps to be taken include:

  • Organise a meeting with the staff member [See Template 1]

  • Establish if there is an underlying cause for the deterioration in performance

  • Specify the performance issues

  • Explain the impact of these issues on the organisation

  • Establish a means of developing improvement

  • Organise a regular review follow up

Any meetings with the staff member should be documented and signed off by the staff member.


If the performance improves to a satisfactory level within a reasonable time then the staff member should be informed that the process has been successful.


In instances where there is no satisfactory improvement within a reasonable period, then a more formal performance improvement plan should be implemented. At this stage a first warning letter should be issued.[See Template 2]


This would include setting specific improvement targets to be achieved within a reasonable time and organising any training or other support that might be necessary.


Regular meetings are to be held to discuss each of the areas and to discuss any improvements as well as any remaining or new issues.


Where the staff member’s performance has satisfactorily improved the performance process should cease and the staff member advised. [See Template 3]

Where a staff member does not make any improvement they are to be advised that continued failure to improve could result in further action, including termination of employment. This would also require the issuing of a final warning letter. [See Template 4]

Irrespective of the stage in the process, any meetings or discussions with the staff member, whether in person or via email, or telephone, should be written up as a record and the staff member asked to sign as a true and correct record of what took place. Signing this record is not necessarily an acceptance or agreement with the action being taken, or of the issues raised: it is an acceptance of what is recorded as being a true account of the discussion or meeting. [See Template 5]

MISCONDUCT

Misconduct arises when a staff members behaviour is in breach of generally accepted standards of conduct in the workplace or is in breach of specific standards or requirements and is seen as a consequence of being incompatible with the requirements of the employer.

Misconduct includes behaviours and conduct such as:

  • Failure to follow a direction or instruction

  • Failure to follow a policy or procedure

  • Failure to submit leave records

  • Repeated unsatisfactory performance


Serious misconduct includes:

  • Theft or fraud

  • Bullying, harassment or intimidation

  • Being affected by alcohol or drugs at work

  • Breach of safety standards

  • Fighting

  • Wilful disobedience


In each case where misconduct occurs, an assessment of the implications of that misconduct must be made.


The outcome of a finding of misconduct or serious misconduct will result in disciplinary action that may include termination of employment.


Where it is contemplated that the misconduct is serious, consideration must be given to whether the staff member is terminated without notice or with notice. This can often be the deciding issue for the employee as to whether they wish to pursue a claim for unfair dismissal as the implication of termination without notice can often result in loss of accrued long service leave entitlements.


Before any such action is contemplated advice as to the most appropriate course of action must be taken.

Misconduct Process


The process commences with identifying a possible instance(s) of misconduct which is expressed as an allegation for the staff member to respond to.


This is usually commenced by requiring a staff member to attend a meeting. [See Template 6]


It is important that a staff member is provided with an opportunity to respond and is also not denied an opportunity to have a support person attend any meeting with them.


The staff member must also be advised of the likely outcome if the misconduct allegation is substantiated.


Where the allegations are straight forward and require no investigation the staff member is to be advised of the allegations and provided with a reasonable opportunity to respond. [See Template 7]


In some instances the nature of the allegation may require that an investigation is undertaken and that the staff member be suspended on pay while this takes place. [See Template 8]


Following an investigation, the staff member is to be provided with specific details of the allegations and provided with an opportunity to respond. [See Template 9]


When the staff member has responded to the allegations, a decision is to be made as to whether any action is required.


If the allegations are not substantiated then the staff member must be advised in writing. [See Template 10]


If the allegations are substantiated then disciplinary action is implemented.


DISCIPLINARY ACTION


If after considering all relevant issues, including the staff member’s response, the organisation intends to take disciplinary action, including termination of employment, the staff member is to be informed of this in writing.

The staff member should be given the opportunity to advise of any issue the organisation should take into consideration before proceeding with the disciplinary action. [See Template 11]

Any matters raised by the staff member should be properly considered before determining whether the action proposed is appropriate.

The final decision should then be conveyed to the staff member in writing.[See Template 12]


FOLLOW UP


Having decided on a course of action this should be followed up to ensure all necessary steps have been taken in respect of payroll, notification to other staff, preparation of exit processes and any other relevant action.

TEMPLATES

Template 1 Setting up a Performance Discussion


Dear

I wish to meet with you to discuss some current concerns regarding aspects of your performance.

The concerns relate to [recent failure to complete some tasks within the required timeframe]

I have sent a meeting request for [2pm on Thursday x/x].

If you wish, you are welcome to bring a support person with you.

I envisage the meeting will be approximately 30 minutes.

If you have any questions please feel free to contact me.

Yours sincerely

Template 2 Performance – First Warning

Dear

Thank you for attending the meeting on x/x.

During this meeting we discussed a number of issues regarding your performance.

The specific issues were:

Your recent failure to complete a number of tasks within the required time frame

Your repeated late attendance for work

We also discussed whether there were any issues that might have impacted on your performance.

You indicated that you had recently experienced x and this was causing you some concern. You reassured me that these issues were no longer a concern and that you did not require any training or other support to undertake your work.

In view of the circumstances I will review your performance over the next month and am issuing this letter as First Warning.

I will organise a meeting in 4 weeks as a follow up.

During our meeting you indicated your understanding both of the issues and the process and accordingly I ask that you sign the enclosed copy of this letter as an acknowledgement of this and return to me within 3 working days.

Should you require support from our external employee assistance provider please make contact as soon as possible.

I look forward to your continued contribution to the work of the team.

Yours sincerely

Template 3 Performance – No Further Action

Dear

I am following up on our recent meeting where we discussed your progress in addressing a number of performance concerns.

I am pleased to advise that I no longer have any concerns and am satisfied that the issues raised with you have been satisfactorily resolved.

Thank you for your contribution and I look forward to continuing to work with you.

Yours sincerely

Template 4 Performance – Final Warning

Dear

I refer to our meeting on y/y where we discussed the performance concerns raised with you at our previous meeting held on x/x.

I am not satisfied that sufficient progress has been made and am therefore setting a series of performance targets to be implemented over coming weeks.

The specifics are:

In view of these matters still remaining a concern to me I am advising you that this is a Final Warning. Should you fail to make satisfactory progress on the matters detailed above, I regret to advise that this may result in the termination of your employment.

During our meeting you indicated your understanding both of the issues and the process and accordingly I ask that you sign the enclosed copy of this letter as an acknowledgement of this and return to me within 3 working days.

Should you require support from our external employee assistance provider please make contact as soon as possible.

If you have any questions please feel free to contact me.

Template 5 Meeting Record

MEETING RECORD

Purpose of Meeting

Attendees

Employer

Employee

Support Person

Date and Time of Meeting

Information Provided

Details of Matters Discussed

Outcome of Meeting

Next Steps

Follow Up Meeting

Signatures

Employer

Employee

Template 6 Setting up a Misconduct Discussion

Dear

I have received information that possibly raises allegations of misconduct against you.

I have sent a meeting request for 2pm on x/x.

The general nature of the allegations relates to [your apparent failure to complete a leave form for your recent absences] [your behaviour towards another member of staff]

If you wish, you are welcome to bring a support person with you.

I envisage the meeting will be approximately 30 minutes.

If you have any questions please feel free to contact me.

Yours sincerely

Template 7 Misconduct – Advice of Allegations – No Investigation

Dear

Thank you for attending the meeting today where I outlined a recent allegation regarding your apparent failure to complete a leave form.

The specific details are:

On Friday y/y you failed to attend work and failed to advise your supervisor. Upon your return to work on Tuesday t/y following your approved RDO on Monday r/y, you failed to submit a leave form for your absence on Friday y/y.

You are advised that if substantiated such action would breach your terms of employment and constitute misconduct.

You are required to respond in writing by close of business on Friday b/y.

During our meeting you indicated your understanding both of the issues and the process and accordingly I ask that you sign the enclosed copy of this letter as an acknowledgement of this and return to me within 3 working days.

Should you require support from our external employee assistance provider please make contact as soon as possible.

If you have any questions please feel free to contact me.

Yours sincerely

Template 8 Misconduct – Advice of Allegations – Investigation

Dear

Thank you for attending the meeting today where I outlined a recent allegation regarding your apparent behaviour towards another staff member.

The general allegations are that you swore at a member of staff and used inappropriate language.

The nature of these allegations are sufficiently serious for us to undertake an investigation. This will be undertaken over the next few days and you will be suspended on pay whilst the investigation takes place.

Following this you may be provided with more specific details to which you will be required to respond.

You are advised that if substantiated such action would breach your terms of employment and constitute misconduct.

During our meeting you indicated your understanding both of the issues and the process and accordingly I ask that you sign the enclosed copy of this letter as an acknowledgement of this and return to me within 3 working days.

Should you require support from our external employee assistance provider please make contact as soon as possible.

If you have any questions please feel free to contact me.

Yours sincerely

Template 9 Misconduct – Advice of Specific Allegations following Investigation

Dear

I refer to my letter of x/x in which I advised of an investigation being undertaken into allegations regarding your behaviour towards another member of staff.

As a result of this investigation I advise that the following specific details of the events referred to are as follows:

  • It is alleged that on y/x you ….

  • It is alleged that on z/x you ….

You are required to respond to these allegations by close of business a/x.

You will remain suspended on pay during this period.

Upon receipt of your response I will review the information I have received in relation to the allegations and advise of the outcome.

You are again advised that if substantiated such action would breach your terms of employment and constitute misconduct.

Should you require support from our external employee assistance provider please make contact as soon as possible.

If you have any questions please feel free to contact me.

Yours sincerely

Template 10 Misconduct – Advice of Finding – Allegations not Substantiated

Dear

I have received your response to the allegations regarding your conduct and have considered the information available to me.

I have determined that the allegations are not substantiated and that the matter is now closed.

I recognise that this has been a difficult issue for you and thank you for your understanding.

Yours sincerely

Template 11 Misconduct – Advice of Finding – Allegations Substantiated – Response for Consideration

Performance – Repeated Unsatisfactory Performance – Response for Consideration

Dear

I have received your response to the allegations regarding your conduct and have considered the information available to me.

I have determined that the allegations are substantiated and that you have been found to have engaged in behaviour that constitutes misconduct/serious misconduct.

I propose that you be removed from your current position and transferred to x/dismissed from your position effective immediately/with effect from x/y

If there are any matters that you wish me to take into consideration before proceeding you are to advise of these in writing by close of business c/x.

Should you require support from our external employee assistance provider please make contact as soon as possible.

Yours sincerely

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Dear

I refer to our meetings of x/x and y/x regarding your performance and the actions taken to encourage improvement.

Despite these actions your performance continues to remain unsatisfactory and I now propose that your employment cease with effect from c/y.

If there are any matters that you wish me to take into consideration before proceeding you are to advise of these in writing by close of business c/x.

Should you require support from our external employee assistance provider please make contact as soon as possible.

Yours sincerely

Template 12 Misconduct/Performance – Final Determination

Dear

I have given consideration to the matters raised by you in response to the action I proposed taking.

I have determined that your employment will cease with effect from c/y. You are required to return all items in your possession that properly belong to the company.

You are reminded of your obligations under the terms of your employment to maintain privacy and confidentiality.

Yours sincerely

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