The management of employee performance or indeed the end of an employment relationship – be it by termination or redundancy – requires the observation of certain forms and elements that ensure the relationship ends appropriately.

None is more important than the concept of Procedural or Natural Fairness, wherein employees are offered an opportunity to understand the breaches and be given chance to explain their actions and behaviours and be given an opportunity to rectify or improve those actions and behaviours if appropriate.  This is true in all cases including while on probation, or if there has been a serious misconduct incident.

Misconduct

As we have explored in previous HR Highlights on misconduct and dismissing sick workers all businesses should have a misconduct policy in place that clearly communicates what constitutes misconduct in the business, and reminds staff that a possible and likely outcome of misconduct in the workplace is summary dismissal, or being fired on the spot.

Even in the absence of such a policy and communication system there are some clear areas of misconduct that a ‘sensible person’ would assume would place continuing employment into peril: violence, endangering others, working under the influence, theft (failure to follow stock and cash handling procedures) and confidentiality breaches.

Procedural Fairness

Even when there is a clear case of employee misconduct there is a requirement to properly investigate incidents, and address any mitigating circumstances before terminating the employment relationship. This is called procedural fairness.

To address misconduct, while ensuring procedural fairness is followed there are some Do’s and Don’ts.

Management needs to be open to the reform of the behaviour in instances where reform is appropriate.

For grievous misconduct and serious breaches it is still important for management to give the employee a chance to tell their side of the story as there may be mitigating circumstances that the employer should take into account before determining the appropriate response.

This requirement is not reduced when there is a clear and serious breach.

Even in serious instances of bullying, violence, theft and safety breaches, where the business has a zero tolerance approach and is likely to terminate any offending employees, procedural fairness must be satisfied.

The Performance Management basics must be followed, including: the appropriate notification a performance management meeting, affording employees the opportunity for a support person at the meeting, outlining the breaches as noted by the business, and allowing the employee to respond to the breaches BEFORE a business decision on the future employment of the staff member is considered.

All line managers and team leaders need to be aware of the need to build this concept of procedural fairness into their performance management responses and to seek advice from managers and third parties if required.

Do:

  • Before the initial meeting
    • Investigate the incident including gathering independent witnesses versions of events if possible
    • Call a performance meeting with as much notice as is possible and practical (eg. later in the day or the next day).
  • At the initial meeting
    • Allow a support person – like all performance meetings the employee should be allowed a support person if that is their preference
    • State the facts of the incident as indicated by the investigation
    • Seek the employees version of events  – noting down discrepancies from the investigation
    • Discuss the next steps acknowledging the employees version and any mitigating circumstances
  • After the initial meeting
    • Consider the employees version for an appropriate time before making a final decision
    • Call for another meeting
    • Document decision and communicate ie. Termination Letter
  • At the final meeting
    • Allow a support person
    • Acknowledge the employees version of events
    • Outline the decision the business has made
    • Provide written advice in the form of a letter
  • After the final meeting
    • Establish and pay all entitlements

Don’t:

  • Shout or react in an emotional way
  • Forget to investigate. Decisions should not be based solely on the information of a wronged party
  • Drag the employee into a meeting straight away.  Give them a chance to gather themselves and a support person if needed, but stand them down from work duties until the meeting if the situation requires it
  • Jump to decisions and final letters without hearing the employees version of events
  • Withhold “theft” or other amounts from the entitlements payments, a legitimate civil claim from the employer on the employee for losses is not a valid reason for deducting from employees entitlements

Members are reminded that ACAPMA can assist in the performance management of employees in member businesses through the provision of advice and support as well as template letters and checklists.

Here to Help

ACAPMA’s Employment Department is available to assist members by calling 1300 160 270 or via employment@acapma.com.au.

HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by  calling 1300 160 270 and speaking to one of ACAPMA Workplace Relations Professionals its free for members.

ACAPMA membership is affordable at only $770 per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Click here to learn more about ACAPMA Membership.