Managing staff is a never-ending daily task that comes with every business.  How to appropriately and compliantly navigate those situations where a staff member is not performing up to standard can be a stressful time for even the most seasoned business operator.  As part of the latest Mini Masterclass Series we are doing a deep dive into Performance Management and exploring the scenarios, the concerns, the protections and tips and traps for employers. This week we will build on last weeks learnings, and explore the important second stage – the actual meeting.

Recap

As outlined in last weeks instalment of the Series:  https://acapmag.com.au/2021/11/mini-masterclass-performance-management-part-1/, having identified an issue, it is vital that the meeting is called in the correct way.  This is vital to ensure that the first element of procedural fairness is met and addressed, employees have a right to prepare for a performance management meeting, and they have a right to have a support person present for a performance management meeting.  Calling the meeting with notice is vital to ensuring that the business is able to demonstrate that it has met this first important procedural fairness requirement.

Prepare for the Meeting

Once the meeting has been properly called and set, it is time to prepare for the meeting.

The preparation that occurs for the meeting will depend on the nature of the incident or issue to be discussed.  If the performance includes tardiness, then gathering the attendance information is appropriate.  If the performance includes a safety breach onsite, then gathering, and preparing to show to the employee, the CCTV Footage, any reports or other materials, is appropriate.

It is also a good idea to put together a detailed Meeting Agenda or Script, which will ensure that you address all of the key areas in what can be a challenging situation without forgetting any issues to be discussed.

An Agenda or Script is also a good place to include reminders for yourself as the meeting convener, about the best practice procedural fairness elements you need to ensure you are complying with.

At the Meeting

It is important to remember the point of a performance management meeting, is to ensure that the employee understands the breach, understands the businesses typical response to the breach, and has an opportunity to comment and to influence the final decision BEFORE it is made by the business.

A typical performance management meeting will cover the following ground;

  • Welcome

Welcome to the employee, thank for participating in the process, acknowledge any Support Person present and clarify the role of Support Person is to act as a witness, not an advocate or mouthpiece for the employee. The meeting is between employee and employer and those are the people who are having the meeting, though the Support Person can clearly advise the employee and provide comment to the employee throughout the process

  • Outline of issue

Explain the issue that has led to the calling of the meeting, outline the breach, the reason the business is concerned, and what the business’s standard response would be

  • Seek Comment

Seek the comment of the employee on the breach and the standard response, ensure notes are kept of the comments

  • Reflect Comment

Put the employees comments back in your own words and ensure that you have understood them correctly, ask the employee if there was anything further to be added

  • Outline the process

Explain that as noted the businesses standard response is [x] but that given the comments these will be considered, within the broader context of the business, and a final decision will be made and then documented in a follow up letter

  • Standdown

In situations where the business is concerned for the safety of the employee or others, or there are misconduct concerns, or any other such situation where it is determined that until a final decision is made the employee should not be working, then the employee should be stood down with pay until the decision is made.  Stood down with pay means that the employee will receive payment as if they had worked the current roster. In some cases of serious misconduct it may be appropriate to stand an employee down without pay – but this would be a rare occurrence and should be undertaken only with appropriate guidance

  • Close the Meeting

With thanks and reminder that decisions will be communicated shortly

Sample Agenda/Script – Performance Issue: Lateness

Lets see how this process would work in a fictional situation where the employee has been repeatedly late to start their rostered shift. In such a case the meeting convener could prepare an Agenda or Script to ensure that all of these elements are covered correctly and it may look like this;

Thank you for agreeing to participate in this performance management meeting.  As noted when the meeting was called yesterday I have [name] here with me acting as a witness, and I note you have [ name ] here with you acting as a Support Person.  I will take a moment just to remind everyone that the role of Witness and Support Person is to act as a witness and emotional support for the principles, but not to speak for or be an advocate of either of the principles, this is a meeting between the business and the employee, that is aiming to address some performance issues.

 In this case this meeting is aiming to address a pattern of poor performance, specifically a pattern of presenting late for shift start.  As was outlined on commencement, and has been confirmed by the Site Manager on numerous occasions, including when you were late on [date], [date], [date] and [date], it is the expectation of the businesses that you will be at work, ready to work from the rostered start time.  Your continued failure to meet this simple expectation amounts to poor performance and the business would as a standard, consider termination for poor performance to be appropriate in such situations, however, the point of this meeting is to allow you to comment and help the business understand why these breaches have been occurring, and to convince us that you understand, can achieve and will commit to meeting the business expectations in this area, which the business will entertain and is prepared to work with you to achieve, given the right attitude and approach.

 With that in mind do you have anything to say about these breaches, the business expectations, your understanding of your own capacity to meet the expectations in the future or thoughts on continuing employment?  [NOTE DOWN COMMENTS]

 Thank you for your comments, If I am understanding you correctly you are saying that [REFLECT COMMENTS – for example…you have been late recently due to a temporary move to a new home location, that resulted in you being further away from the business, combined with the loss of your car and the need to take public transport, but that you have recently replaced your car and are committed to being on time in the future.]  Did I miss anything, is there anything else you would like to add?

 Given that we have your comments now they will be considered and you will be notified in a formal response of the outcome.  As mentioned the businesses standard response to poor performance is termination, or a warning where appropriate.  In this case it would seem that a warning is most likely, however I should make very clear, if a warning is what is decided it will be a final warning, and further breaches are likely to result in termination of your employment.

 Again thank you for your participation in the meeting, performance management meetings are never fun, however, hopefully our discussions, clarifications and commitments today will result in a more functional and harmonious workplace in the future.  As mentioned we will notify you in due course of the decision.

Sample Agenda/Script – Misconduct Issue: Theft

In a different situation where the employee has been observed misappropriating business cash (theft) the meeting convener could prepare an Agenda or Script to ensure that all of these elements are covered correctly and it may look like this;

Thank you for agreeing to participate in this performance management meeting.  As noted when the meeting was called yesterday I have [name] here with me acting as a witness, and I note you have [ name ] here with you acting as a Support Person.  I will take a moment just to remind everyone that the role of Witness and Support Person is to act as a witness and emotional support for the principles, but not to speak for or be an advocate of either of the principles, this is a meeting between the business and the employee, that is aiming to address performance issues.

 In this case this meeting is aiming to address gross misconduct, specifically misappropriation of business fund and failure to follow stock and cash handling procedures.  Subsequent to [DETAILS such as; errors and outages in the till] a review of CCTV Footage was undertaken and it shows you repeatedly on [date] and [date] and [date], [DETAILS such as; processing customer cash sales, then voiding the sale and placing the money in your own pocket] in an act of clear gross misconduct and apparent theft.  This distressing breach would typically result in immediate an summary dismissal for gross misconduct and referral to the police, however, the point of this meeting is to allow you to comment and help the business understand why these breaches have been occurring, prior to a final decision being made.

 With that in mind do you have anything to say about these breaches or thoughts on continuing employment?  [NOTE DOWN COMMENTS]

 Thank you for your comments, [REFLECT comments for example; If the employee offers to pay the money back…If I am understanding you correctly you are saying that you were short on cash and that you had intended to balance the till out but simply forgot.  That you have offered to pay all of the money back as long as the business does not refer you to the police.]  Did I miss anything, is there anything else you would like to add?

 Given that we have your comments now they will be considered and you will be notified in a formal response of the outcome.  As mentioned the businesses standard response to such a serious breach is termination, or a warning where appropriate.

 Again thank you for your participation in the meeting.  Given the seriousness of the breaches you are to be stood down without pay until the business makes a final decision.  As mentioned we will notify you in due course of the decision.

Notes on Appropriate Response

When the issue to be discussed is around general poor performance, this discussion can include setting performance targets, and giving the employee an opportunity to “pull their socks up” and demonstrate capacity to meet the business expectations.  In such a situation it would be appropriate to discuss ensuring that the employee understands the expectations and that a formal documentation of the meeting will be issued and it will include a warning, to ensure that all are aware of the discussion points, the expectations, the commitments made and the repercussions of future breaches.

When the issue to be discussed is around serious breaches, this discussion can feel more one sided, but it is important that the business give the space for the employee to comment and attempt to change the business default position.  For example, the business may have a zero tolerance policy for swearing onsite, and the employee was observed swearing onsite.  It would be appropriate to call the meeting, it would be appropriate to explain to the employee that the business standard response would be termination, but that the point of todays meeting is to understand if there are any other elements or comments that the employee would like the business to consider before it makes its FINAL decision.  In a situation where an employee had long, unblemished service, and was undergoing specific short term stress at home (such as a divorce or serious diagnosis) it would be appropriate, even in a zero tolerance environment, to issue the employee with a warning, if the employee understood the seriousness of the breach and committed to compliance moving forward.  Indeed in such an example, termination, while within policy, could possibly fall into the category of harsh, unjust or unreasonable – but termination WITHOUT hearing out the employees comments and then considering them fully, WOULD ABSOLUTELY be considered harsh, unjust and unreasonable by the Fair Work Commission.

Other Concerns – Managers Meeting Notes

Some businesses will prepare the Agenda/Script in advance to ensure that all items are discussed and will even ask the employee to sign a copy of the Agenda/Script.  It is worth noting that in some situations, the employees may request/demand a copy of the notes.

There is no problem with presenting the employee with a copy of the Managers Meeting Notes, however, it is best if this is done with a record of the communication – so that in any future dispute it is clear what was raised.  This is best done when providing the formal response – eg – “please see attached for the formal response, please also see attached for a copy of the Managers Meeting Notes as requested”.

By the same token the business is within their rights to decline such requests, politely and professionally – eg – “these notes have been made by me to ensure that I cover all of the areas that I need to discuss with you and are an aide for me conducting the meeting, I would suggest if you would like a record of the meeting that you also take notes”. Such a discussion should be settled at the beginning of the meeting.

Other Concerns – CCTV Footage

A similar situation arises with the CCTV Footage.

While it is appropriate to show the employee CCTV Footage that pertains to the incident being discussed, and to note in the Meeting Notes and later in the formal response, that the employee was shown these things – it is not a requirement to provide a copy of the CCTV Footage to the employee.

The business can make the decision to provide the CCTV Footage or not and must communicate that to the employee;

Employee: Can I have a copy of that?

Manager:  At this time no, the CCTV Footage remains the property of the business and is only released to the police, however, you have seen it and its content is damning.  I am happy to show it to you again if you like and you can take notes

Employee:  Can I record it?

Manager:  No you do not have permission to record any part of this meeting or the CCTV Footage

 or

 Employee:  Can I have a copy of that?

Manager:  At this time no, but I will investigate if the business is willing to release the CCTV Footage to you and will let you know in the formal response

 Remember, at the meeting;

  • DO Ensure that there is detail and clarity of information – use specific dates and times, not general statements
  • DO Ensure that if you are going to make reference to CCTV Footage, that you have it ready to show the employee in the meeting
  • DO Ensure that you explain what the businesses standard decision would be
  • DO Ensure that you hear the employee out BEFORE a final decision is made
  • DO Ensure that you document the meeting in full (and only the items discussed at the meeting)
  • DONT – NOT EVER – HAVE A LETTER READY TO HAND OVER IN A PERFORMANCE MANAGEMENT MEETING – EVEN IF THE BREACH IS OF A ZERO TOLERANCE POLICY. THIS BREACHES PROCEDURAL FAIRNESS AND MAKES THE MEETING A FARCE!!!!!!
  • DON’T Get personal or general
  • DON’T Turn the meeting into a laundry list of items, keep it focused
  • NEXT STEPS – Decisions and Documentation

Step 3:  Decisions and Documentation

Now that the meeting has been done the next step is for the business to make a decision as to how it will proceed, and then to communicate and document that decision to the employee.  This will be the topic of Part 3 of the Mini Masterclass Performance Management Series: Decisions and Documentation. (see; https://acapmag.com.au/2021/11/mini-masterclass-performance-management-part-3/).

Here to Help

 HR Highlights are things to consider, implement and watch out for in your business.  They are provided as general information for you to consider and do not constitute advice.  You should seek further advice on your situation by contacting your legal advisor.  ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment professionals via employment@acapma.com.au , it is free for members.  ACAPMA Membership delivers this and more benefits, see; https://acapma.com.au/membership/  for more information.

Elisha Radwanowski BCom(HRM&IR)
ACAPMA

 

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