Performance Management, Disciplinary Processes, or Dismissal
It is inevitable that at some point an Employer will need to raise an employment concern to an Employee. It may be as simple as ongoing lateness or using their cell phone in work time, or as serious as theft or violence in the workplace. There are specific processes that must be followed if any performance or disciplinary processes are to be enacted. Particularly, if a warning or dismissal is a likely outcome for an Employee.
Employment Agreements must contain the process for addressing employment concerns.
So What’s The Difference Between Them?
At the lowest level, performance concerns may be managed through regular Performance Appraisals. For any concerns that require more immediate intervention, a Performance Improvement Plan may be implemented to provide support or further training to the Employee so that they may reach the required standard. The latter requires that a proper process is followed in implementing a Plan of this type and any unlawful action in its implementation could result in legal proceedings against the business by the Employee.
Employers must have standards and expectations provided to Employees in writing. Job Descriptions and Codes of Conduct are the best way to ensure Employees know exactly what their role and its requirements are and the standard to which the work is to be performed.
In order to enact a disciplinary process against an Employee, the Employer must follow a proper process which will include, among other things, meeting with the Employee, giving them an opportunity to respond to any allegations or concerns, considering the Employee’s response, and making a fair and reasonable decision based on the evidence provided.
It may be that an investigation will be required to be carried out into any matters.
Where a decision is made that has impact on that Employee’s employment, such as a Written Warning, a Final Written Warning, or Notice of Termination, the Employee has a right to raise a Personal Grievance against the Employer if proper process has not been followed.
An Employer has a right to dismiss an Employee if the issue of concern is that of repeated misconduct, or serious misconduct. It is strongly advisable to have appropriate Company Policies that support the Company’s view of misconduct and serious misconduct.
It may be that repeated instances of misconduct or an instance of serious misconduct warrant dismissal. Given the seriousness of the impact on the Employee of this decision, it is paramount that the process undertaken in reaching such a decision is fair, reasonable, conducted lawfully, and includes the terms contained in the Employee’s Employment Agreement, such as a notice period.
While there may be reasonable circumstances to summarily dismiss (on the spot) an Employee, for example, you catch them with their hand in the till, an Employer must still follow a lawful process, which could include paid suspension, while reaching that decision.
It is unlawful for an Employer to pre-determine any outcome until all steps in the process have been followed.
Work Law Advocates can assist Employers in deciding whether their concern is related to performance issues, or if a disciplinary process should be enacted, which may or may not result in termination.
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