Managing poor performance in the workplace can be a stressful time for the business as well as for the employee.  This weeks HR Highlight will expand on the last few weeks foray into performance management basics, and will explore the important third stage; what happens AFTER the meeting.

As outlined in the rest of the series, having identified an issue and called the meeting https://acapmag.com.au/2019/10/hr-highlight-performance-management-basics-calling-a-meeting/, and having actually conducted the meeting https://acapmag.com.au/2019/10/hr-highlight-performance-management-basics-at-the-meeting/, it is now time to document the meeting, the items discussed, the comments of the employee and the outcome.

Decisions

Having completed the meeting the business must consider if its initial response to the breach (typically automatic warning or termination) is justified in all of the circumstances, considering what the employees comments / explanations were.

This consideration is important, and it is helpful for the business to document the thought process, even if in a high-level way, as the reasons for your decision may be questioned in later proceedings concerning this employee or others.  A discussion with management and an email is satisfactory.    For example, an email to manager could look like the; 

Dear [name],  Regarding the performance management meeting with [name], as discussed the comments that he has just forgot, do not outweigh the seriousness of the breach, and his reluctance to accept responsibility or acknowledge the seriousness of the breach make it hard to believe that further performance management will result in a guarantee that this wont happen again.  As such its recommended that the standard response of termination be upheld in this case.  As discussed I will process paperwork now.  Regards  [name]

This sample consideration notation hits all of the important elements of; acknowledging that there was a meeting, that the business has a standard response to that type of breach, that the employee was given and took up an opportunity to comment and influence the final decision and change the businesses mind from its standard response, that the business considered those comments and – for practical and defensible reasons – decided that they did not warrant deviation from the standard response.

If you are the only decision maker then a diary note is sufficient.

Documentation

Regardless of the outcome of the meeting, the meeting itself, who attended, what was discussed and what the businesses final decision is, will all need to be documented in a formal letter, provided to the employee and kept on file.

Formal documentation should follow the standard format of;

  • Opening
    acknowledging the meeting and attendees

Sample text
Dear [name],
Further to the performance management meeting on [date], attended by [business attendees], [employee] [and XYZ as your Support Person], this letter is to serve as a record of the meeting and as notice of

  • Outcome Summary
    stating clearly the outcome of the process and the reason.  Reasons will fall into a series of categories, with specifics that will change based on the situation. 

For example;

  • Constant lateness would be expressed in this outcome summary as; poor performance, specifically failure to follow reasonable instruction concerning shift start times and attendance
  • Pattern of just not following instructions / completing tasks, would be expressed in this outcome summary as;  poor performance, specifically a pattern of behaviour showing failure to follow reasonable instructions
  • Safety breach (mid range) would be expressed in this outcome summary as; misconduct, specifically failure to follow safety instructions
  • Theft (which is ALWAYS to be referred to in the business as “failure to follow stock and cash handling instructions and misappropriation of business funds / stock” – only the police and courts can determine “theft”) would be expressed in this outcome summary as; gross misconduct, specifically failure to follow business critical stock and cash handling instructions and misappropriation of funds

Note:  when the outcome is termination of employment it is important to note in this Outcome Summary, when the termination is effective from – typically termination for poor performance, misconduct and gross misconduct are “effective immediately” with payment in lieu of notice where it is required.

Sample test
Termination of your employment, effective immediately for gross misconduct, specifically failure to follow business critical stock and cash handling instructions and misappropriation of funds.

  • Procedural Reflection
    outlining that the meeting was called appropriately, with notice provided outlining the nature of the breach and allowing for the employee to arrange for a Support Person if desired, and if they did indeed take up that opportunity.

Sample text

As you are aware the performance management meeting was called with notice on [date meeting was notified to employee] to discuss serious concerns of gross misconduct.  The business notes that you elected not to have a Support Person present for the performance management meeting.

  • Breach Outline and Standard Response
    outlines the breach, the standard response and the importance to the business

Sample text
As outlined in the performance management meeting, standard security review highlighted several breaches of the safe drop policy that led to the business reviewing the CCTV footage of your shifts, which led to the identification of several instances of you processing customers cash sales, and then voiding the sale in the system and placing the cash in your pocket, in clear breach of the stock and cash handling instructions.  As discussed this is considered gross misconduct by the business and as a misappropriation of business cash also constitutes theft and may be reported to the police as such.  As discussed the businesses standard response to such serious breaches is summary dismissal, however the performance management meeting was called to allow for discussion of the breaches and to understand if there were any special circumstances that may mitigate this response.

  • Comment Consideration and Final Decision

outlines the employees comments and if they were persuasive as well as the detailed outcome

Sample text
As you are aware your comments and explanation amounted to initial denial which was modified to the comment “I just forgot” after being shown the CCTV footage and later an offer to ‘pay it all back’.  While the business carefully considered your comments they are not found to be persuasive at all, and the cavalier attitude to what is a critical area of the business has completely undermined the capacity of the business to trust you to faithfully discharge your duties, making your continuing employment untenable and leading to the final decision to terminate your employment effective immediately for gross misconduct, specifically failure to follow business critical stock and cash handling instructions and misappropriation of funds.


Note:  when dealing with “theft” this would be an appropriate place to address referral to the police if that is the businesses chosen approach

  • Close and Entitlements

outlines the recognition of notice and other entitlements and applies any conditions or instructions

Sample text
All as yet unpaid wages and applicable accrued leave will be paid as a termination payment in addition to [x] weeks payment in lieu of notice.
Regards

[Manager name]


Note:  payment in lieu of notice amount will depend on the employees status and number of years service – see:  https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/minimum-workplace-entitlements/notice-of-termination-and-redundancy-pay for more information

Note on direction to refrain from attending the workplace:  in some cases, particularly around bullying and harassment, the former employee may be directed to “cease and desist from attending the businesses locations” this would be the section to include this direction


Note on return of property:  if the employee is in possession of business property, this would be the section to include reference to that.  In setting the return of company property it is important that the business minimise the impact on the former employee and consider the impact on the site – in situations where the former employee is being directed not to return to site the provision of a reply paid post pack would be appropriate

Note on Gross Misconduct:  in the instance of gross misconduct the business is entitled to withhold the payment in lieu of notice and activate “summary dismissal” which is dismissal without notice.  This type of handling is reserved only for the most serious gross misconduct

Providing the documentation to the employee can be done in person, via email or via registered post.  The method chosen will depend on the nature of the documentation.  Typically Formal Warnings are issued in person and Termination letters, particularly when the employee has been stood down with pay pending the outcome, or will be directed not to attend the business location, are typically issued by registered post or email.  It is important however to place a call to the employee in the event of termination and let them know that that has been the decision and the documentation is on its way to them now.

Next Steps:  Performance Review or Termination Payments

Having made and documented the decision, and communicated that to the employee, the next steps will vary, depending on what that decision was, and will either involve performance review to ensure that the Formal Warning has achieved the goal of correcting performance standards, or termination payments and file closing to bring the terminated employees relationship to an end, these next steps will be explored in detail in the next of the HR Highlight:  Performance Management Basics series next week.

Here to Help

ACAPMS’s Employment Department is available to assist members 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 should seek further advice on your situation by emailing employment@acapma.com.au to reach one of the ACAPMA Workplace Relations Professionals, its free for members.