Two of the most common errors that we see Employers making is incorrectly seeking to address a performance matter through a disciplinary process, or seeking to put in a performance management process for a concern that should more appropriately be addressed through a formal disciplinary process. Incorrectly applying either process from the outset may render any subsequent outcomes as being unjustified.
Poor Work Performance involves a person’s inability to do their job and falls under the broad heading of incapacity. Poor work performance or failure by the employee to reach and maintain the employer’s work performance standards, in terms of quantity and quality of output, may be deemed to be a breach of the employee’s duties and responsibilities to the employer. Should the employee fail in this duty, then they are said to be “incapable” and the employer has the right to terminate their employment after following a fair process. The term ‘Incapable’ itself being defined by the employee demonstrating inferior skill, knowledge and ability despite having received adequate training and sufficient time to learn the role.
However, poor work performance should not be mistaken for negligence where an employee is capable of reaching and maintaining the employer’s work performance standards but has failed to or continuously fails to carry out their duties in accordance with the employer’s standards in terms of quantity and quality.
Disciplinary action is a specific response to an employee’s misconduct (attitude, behaviour and conduct). Disciplinary action should never be applied in cases of poor work performance. Where the employee is deemed capable of controlling their attitude, behavior and conduct, the actions to address such concerns are usually more punitive (formal warnings).
Dealing with poor performance or misconduct
In dealing with either poor performance or misconduct a fair process should be followed. A fair process encompasses establishing whether the problem is poor performance or misconduct. However, it can be hard sometimes to tell the difference between poor performance and misconduct. In recent cases the Courts have emphasized the objective in dealing with a poor performing employee should be to assist them to meet the standard of performance required, rather than using the disciplinary process hastily as a cause for dismissal.
This is not to say that employers are without remedy in instances where employees have breached company rules or standards. Should an employer hold concerns of negligence, an employee’s actions may constitute serious misconduct and the employer has the right to terminate the employee’s employment after following a fair process.
Where an employment agreement sets out a disciplinary procedure or where there are internal policies or rules that specify how performance and misconduct issues are to be dealt with, those procedures should be followed. These policies should be made available to all employees and the employer should be consistent in applying and enforcing these policies.
As part of a performance management policy, interventions could include that the employer should identify the issue e.g., where skills are lacking, and that the employer should inform the employee and provide further training where appropriate. The employer should put in place a performance improvement plan (PIP) to address the performance issues and to give the employee an opportunity to improve to the required standard.
In a performance management situation, a series of warnings is the most appropriate approach as it allows the employee to fully grasp what the performance gaps are and gives them time, with support, to get to the standard required.
As part of a disciplinary process, the employer should detail the employee’s actions that may contravene the employee’s conditions of employment, referencing this against the House Rules or Code of Conduct, including stipulating what the potential outcomes of the disciplinary action could be (i.e. warning or potential termination)
For advice on managing misconduct and/or poor performance in the workplace, please feel free to contact us directly.