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 final stage and decision; will there be a further performance review or will there be termination of employment and file closure?
As outlined in the earlier instalments of the Series:
it is now time to close the loop, either through ongoing performance review (if the decision was to issue a formal warning) or through termination payment and file closure (if termination was the decision).
If the outcome of the performance management meeting was the decision by the business to issue the employee with a formal warning for the breaches, then closing the process involves reviewing the employees performance after the warning has been issued to ensure that the meeting, discussion of expectations and the warning itself, have had the intended outcome of “righting the ship” and putting the employee back on a pathway of star performance.
Undertaking this review and observation, and the period that it will continue for, will vary greatly, depending on the nature of the breaches themselves.
Serious issues, like bullying, harassment and discrimination behaviours (and unprofessional conduct at work) have the potential to quickly escalate, and behaviour in the initial stages after the meeting should be observed closely, and any deviation should be swiftly and formally addressed following the performance management process. Over time if performance is returned to expected and required levels the close observation can naturally drop back to standard management observation. However, should the same or a substantially similar issue appear at a later stage, the nature of such breaches, as a fundamental expectation of conduct at work, particularly one that the employee has already (even some time ago) been warned about, would be likely to result in steep consequences.
More minor issues, like uniform breaches, or appearing late for work however, are areas that will require observation and feedback in the initial stages after the meeting and any further similar breaches in the near term would result in swift and formal performance management and could, depending on the situation, result in steep consequences. However, if expectations are met for some time and then later breaches are observed, it would be appropriate to mention previous warnings in any new performance management process initiated, however, it would be inappropriate to consider the previous warnings “active” after some time has passed.
ACAPMA is often asked – how much time?. Like most employment questions, the answer is not simple, or clear cut. What is clear, for example, is that if the business were to call a meeting about an employee coming in late, go through the proper process, and then, based on a 3 year old warning for lateness, decide to terminate the employee, that this would likely result in the termination being considered harsh, unjust or unreasonable, as the time between the breaches and the apparent improvement between, was too great. Each case will need considered judgement to be applied.
Termination Payment and File Closure
If the outcome of the performance management meeting was the decision by the business to terminate the employee, then closing the process involves ensuring that the employee receives all payments for unpaid wages (including attending the performance management meeting and any applicable ‘stand down with pay’ amounts that arose from the performance management process) and accrued applicable entitlements. Termination payment should also include the appropriate payment in lieu of notice (if the employee was terminated effective immediately). The notice that will be payable is dependent on the employees status, age and length of service and may be impacted by the reasons for termination (the amount of notice required for Gross Misconduct is ZERO).
Terminated employees should also be provided with a Separation Certificate and Group Certificate as appropriate.
The closure of the file for the employee should include copies of all of the performance management notes, documentations, termination letters, termination payment calculations and proof of payment. These documents and the full employee file should be closed but retained for 7 years.
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 email@example.com , 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)