Managing poor performance in the workplace can be a stressful time for the business as well as for the employee.  This weeks installment of the latest HR Highlight Series on Performance Management will expand on the series and explore the important third stage; what happens AFTER the meeting – Decisions and Documentation.

As outlined in the rest of the series, having identified an issue and called the meeting (Part 1 https://acapmag.com.au/2020/08/hr-highlight-performance-management-series-part-1-calling-a-meeting/ ), and having actually conducted the meeting (Part 2 https://acapmag.com.au/2020/08/hr-highlight-performance-management-series-part-2-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, or if an alternative approach is appropriate.

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 following is satisfactory to ensure that there is a good record of the decision process and the reasons for the decision.   

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 appropriate reasons – decided that they did not warrant deviation from the standard response.

If you are the only decision maker then a diary note that is similar in content is sufficient.

When to proceed with a Warning and when to move to Termination is a difficult call to make. The principle that should be applied is one that take into account the seriousness of the breach, the knowledge that the employee had that undertaking such a breach would result in the employment being threatened as well as the length of service and previous performance of the employee.

If the breach is a minor or simple performance breach, such as coming in late, it would be considered harsh to jump to termination. A warning is much more appropriate, as it allows for the clarification of expectations and an opportunity for the employee to show that they can rise to the standard expected by the business.

If the breach is more serious, particularly gross misconduct or serious safety breaches termination may be appropriate, particularly in situations where clarification of expectations and an opportunity to show compliance is unlikely to ”fix” the issue. Some examples could include (but really do depend on the situation so seek guidance) theft, violence, working under the influence, bringing the business into disrepute.

There will be situations where a pattern of small issues amount to a pattern of poor performance that warrants termination, but the principle is that wherever reasonable, an employee should be given a chance to understand the expectations clearly and demonstrate that they can meet them, and a Warning provides that opportunity and should be the default in all but the most serious situations.

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
  • 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.

The reason for the Outcome decision is very important to clearly state. Some common reasons include;

  • 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.

  • 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.
  • Breach Outline and Standard Response
    outlines the breach, the standard response and the importance to the business
  • Comment Consideration and Final Decision
    outlines the employees comments and if they were persuasive as well as the detailed outcome.

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 Letter: Warning for lateness

Every letter will be different, the specific circumstances of the breaches, the employee responses, and indeed any relevant history of the employee, or agreed retraining etc should be reflected in the letter. Sample letters should be used as loose guides showing one way to achieve the relevant inclusions outlined above and guidance and support should be sought if required.

Dear [name],
Further to the performance management meeting on [date], attended by [business attendees], [employee], this letter is to serve as a record of the meeting and as
a formal warning issued for poor performance, specifically failure to follow lawful instructions concerning shift start times and attendance.
As you are aware the performance management meeting was called with notice on [date meeting was notified to employee] to discuss concerns of a series of breaches to the attendance and leave policy.  The business notes that you elected not to have a Support Person present for the performance management meeting.
As outlined in the performance management meeting, after a series of late arrivals, non arrivals and non notifications of late and non starts to the manager as required, the business has serious concerns about your performance with respect to attendance and compliance with the leave policy. As discussed on [date] you were rostered to start at [time] and you presented to work at [time]. You did not contact the site manager as is required. [repeat for all instances that apply].
As discussed the business understands that at times staff will be late or unable to work, however it is a requirement that all staff follow the notification and communication requirements as outlined in the leave policy, which is to actively communicate with the site manager as soon as possible when it is evident you will be late or unable to attend.
As discussed the businesses standard response to such a series of breaches is 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.

The business thanks you for your comments, which amounted to an explanation that you simply forgot the notification process or in some instances were so focused on getting into the site that you did not think about letting the site manager know that you were running late and on your way.
In this instance the decision has been made to issue this Warning. It is important that you understand that the business requires all staff to comply with the communication requirements of the leave policy and it is the expectation of the business that you will comply in the future without exception. It is also important to note that further breaches of business expectations as communicated are likely to result in termination of your employment.
The business thanks you for your participation in this process and looks forward to these issues being fully addressed in the future. As always if you have any questions please reach out.
Regards

[Manager name]

Sample Letter: Termination for Theft

Every letter will be different, the specific circumstances of the breaches, the employee responses, and indeed any relevant history of the employee, or agreed retraining etc should be reflected in the letter. Sample letters should be used as loose guides showing one way to achieve the relevant inclusions outlined above and guidance and support should be sought if required.

Dear [name],
Further to the performance management meeting on [date], attended by [business attendees], [employee], this letter is to serve as a record of the meeting and as notice of
termination of your employment, effective immediately for gross misconduct, specifically failure to follow business critical stock and cash handling instructions and misappropriation of funds.
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.
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.
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.
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 on payment of notice:  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

Note on providing the termination letter: 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 Series on Performance Management: Part 4 – Review or Closure 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.

Elisha Radwanowski BCom (HRM&IR)

Executive Manager Employment and Training

ACAPMA