MANAGING POOR PERFORMANCE

Transcription

1 MANAGING POOR PERFORMANCE Presented by: Wesley Davey, Senior Employment Relations Adviser June 2016

2 DISCLAIMER The QHA has taken every available step to ensure the accuracy of this presentation. Whilst every effort has been made to ensure that the information contained in this presentation is free from error and/or omissions, no responsibility is accepted by the QHA, it s employees or any other person involved in the preparation of this presentation for any claim which may arise from any person acting on information contained herein. The information in this presentation is provided as general advice only. It does not constitute legal advice and it is always advisable to seek further information regarding your own specific employment relations issue.

3 SESSION CONTENT Why Managing Poor Performance is Important Legislative Framework Documentation Record Keeping Process Outcomes and Decision Making Practical Tips

4 INTRODUCTION Managing Poor Performance is important because: It can lead to increased productivity either through improvement in or removal of poor performing staff; it can assist in creating a harmonious and productive workplace which benefits both employees and employers; it can minimise the risk of an employer being found liable for unfair dismissal; and It can reduce the risk of allegations of discrimination or adverse action.

5 LEGISLATIVE FRAMEWORK Important legislation includes the: Fair Work Act 2009 (Cth) and supporting legislation Anti-Discrimination Act Work Health and Safety (National Uniform Legislation) Act There are a couple of protections afforded by the Fair Work Act 2009 that should be considered for the purposes of Performance Management, they are: Unfair Dismissal; and General Protections (Adverse Action)

6 HARSH, UNJUST OR UNREASONABLE? Section 387 of the Fair Work Act 2009 provides the factors FWC must consider, they are: Whether there was a valid reason for the dismissal related to the person s capacity or conduct (including its effect on the safety and welfare of other employees); and Whether the person was notified of that reason; and Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

7 HARSH, UNJUST OR UNREASONABLE? If the dismissal related to unsatisfactory performance by the person whether the person had been warned about that unsatisfactory performance before the dismissal; and The degree to which the size of the employer s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and Any other matters that FWC considers relevant.

8 GENERAL PRINCIPLES The employer should be clear on what the issue is; Refer to any relevant workplace policies or other employment related documents, ideally performance or conduct should be relevant to a workplace policy, contract, position description or something similar; The allegations/concerns/performance issues should be put to the employee and the employee should be given an opportunity to respond; A decision should not be made until the employee has had a chance to respond; The process and response should be relative to the performance issues; Record Keeping and Documentation is vital Procedural fairness and best practice applied at every stage.

9 GENERAL PRINCIPLES If formal performance management is not necessary then discuss the issue verbally with the employee and make an appropriate file note regarding the details but be clear on when more serious discussion will occur. If formal performance management is required then the first step is to find out the facts and to organise a meeting with the employee. Clearly outline the issue, provide procedural fairness and approach the matter formally. Make a decision and implement

10 WORKPLACE DOCUMENTS Employment related documents such as Policies, Contracts and Position Descriptions are important for framing what is and isn t acceptable in an employment relationship and what is expected of the employee. Can be vital in managing and dealing poor performance. In more serious performance management (ie. termination) matters these documents can be the key in establishing a valid reason for dismissal or helping to satisfy the other factors in section 387.

11 RECORD KEEPING AND DOCUMENTATION Documentation at every stage is essential for the following reasons; How can you defend your process if you can t demonstrate the process followed? How can you justify your decision and your actions? (think about section 387 of the FW Act) How can you best clarify a situation when the other party has a differing view? How can you reduce the likelihood of some form of claim?

12 PROCESS When organising the meeting: Put it in written form Give as much notice of the meeting as possible (this is also important for ensuring that the employee has the opportunity to find a support person) Detail the reason for the meeting ie. Performance concerns Advise of the ability to have a support person present (it is up to them to organise this do not allocate a person for them)

13 PROCESS Tip Meet with the employee and; Outline the issue/concern (be very clear on the issues at hand); Outline why it is a problem/issue; Give the employee an opportunity to provide a response. During the discussion, be aware of information the employee gives you as it may highlight other items of concern / opportunities to improve, eg: Lack of awareness of policy Deliberate failure to follow policy Employee may have been following a supervisors direction Refresher training is necessary

14 DECISION In making a decision the following should be taken into consideration: Consider the employee s responses and information available Review the relevant policies, do they provide guidance, does your disciplinary policy set out the next stage? Review the employee s performance history? Review the factors in section 387 even where it is not a dismissal situation.

15 DECISION Once a decision has been made (and that decision is not dismissal) meet with the employee to provide your decision in the following manner: Outline your decision Restate the employer s expectation (refer to policy documents / contract of employment) Seek the employee s commitment to the solution Confirm any timeframes associated with the solution, such as a review in one month Clearly state the implications of not following the solution, such as further disciplinary action. The employee should be fully aware they are being issued with a warning (if that s your intention)

16 DECISION Provide the employee with a written overview of the meeting, as an example, a written warning should outline the following: An overview of the meeting dates; Clear wording as to the type of warning; An overview of the alleged conduct/performance concern and the reason for the warning; Confirmation that the employee was given an opportunity to respond and brief details of the employees response Your decision An outline of your expectations on the employee The statement (or similar) that please be advised that any future performance and conduct issues may lead to disciplinary action including up to termination. A review date.

17 DECISION If a dismissal decision has been made then schedule a meeting with the employee to provide your decision in the following manner: An overview of the alleged conduct/performance concern and the previous meeting/s; Confirmation that the employee was given an opportunity to respond and details of the employees response; Your decision to terminate employment and all of the reasons why; Confirmation of the employee s final date of employment, notice, wages etc. The above should be outlined in a written letter of termination. NOTE: the employer must give the employee written notice of the day of termination. Please note that the termination cannot be before the day the notice is given. If you don t have time to prepare a detailed letter, at least give the employee written notice on the day of termination.

18 OUTCOMES After applying procedural fairness and making a decision the outcomes should be that; The employee understands what the problem is; The employee is fully aware of the expectations; The employee is fully aware of the implications of future performance/conduct concerns; There can be no question that the employee has been treated fairly; or In Dismissal situations, as an employer you are confident that you have satisfied/considered the elements of s387 of the FW Act (where applicable), that you can clearly articulate your position and the reason for dismissal is sound, defensible and well-founded.

19 COMMON MYTHS Are three written warnings always required Are first and final warnings effective Do verbal warnings count What about a zero tolerance policy The employee knows about the policy

20 OTHER PRACTICAL TIPS If an employee claims they can do a certain task (at recruitment stage) and then claims they cannot, you can query whether the employee misrepresented themselves Where an employee claims they are sick, the process must be placed on hold until the employee returns then you restart the process Follow up issues quickly. A delay suggests the issue is not serious Consider that all documentation could be used in court, and draft accordingly Speaking of which document, document, document!

21 OTHER PRACTICAL TIPS Conduct it in a private place Confidentiality is important so that an open discussion can be had Privacy must be maintained no one should be overhearing the discussion No interruptions do not meet where you are likely to be interrupted by other staff or phone calls. Afterwards - Monitor performance and provide feedback Important where you have set a timeframe for improvement Where the problem is rectified, acknowledge it and thank them for honouring their commitment.

22 OTHER PRACTICAL TIPS Make sure your team leaders are trained to let you know about issues consistency in approach is essential Knowledge also means you might have the opportunity to deal with a matter before it becomes a bigger issue (or an external issue) Give procedural fairness Have a valid reason Have sound evidence based on a solid investigation (not capricious, fanciful, spiteful or prejudiced) Follow organisation procedures and policies consistently.

23 DON T Ignore poor performance or conduct Fail to deal with issues as they arise Draw unreasonable conclusions Deny an employee an opportunity to respond Hold back any information or facts Rely on facts not presented to the employee Have termination or discipline letter ready to give employee at a meeting Show your dislike or other personal feelings for the employee.

24 SUMMARY Put in place or update policies Document Apply Procedural Fairness Make Careful/balanced decisions And as always, if you are unsure or need assistance, contact the QHA.

25 QUESTIONS

26 THANK YOU