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This is not advice. Items herein are general comments only and do not constitute or convey advice per se. The information contained in these articles is for guidance only and should not be relied upon without obtaining professional advice having regard to your direct circumstances.


When push turns to shove

What do you do if a staff member's actual performance doesn't meet with reasonable expectations?

Perhaps you discover consistent errors in their work, or their work is continually substandard, or they are just unable to meet the set deadlines.

No matter how small your enterprise, it is vital that you understand the correct procedure for managing unsatisfactory performance.

A business which has invested time and money into staff training can't afford to just let staff slip away. But sometimes a time arrives where an underperforming staff member can begin to cost the company time and money.

Have a plan 

So how do you manage poor work performance without exposing yourself to unfair dismissal laws?

Performance Management Plans, or workplace assessment programs, are increasingly used in the smaller end of business to help retain and enhance a company's business management skills.

''If you are having real doubts about whether the employee is going to make it and contemplating at least that there may be a separation in employment, you need to make sure you have fulfilled your requirements so that if you have to move to termination you can do so in a way that is legally effective,'' says Charles Power, a Workplace Relations specialist accredited by the Law Institute of Victoria and Partner with Holding Redlich.

''Sometimes these things can come on you quickly, especially if others in the business are pushing you to get rid of this person.

''You need to have sorted out those factors that the employee might be pointing to as a reason they are not delivering. These might include poor health, inappropriate management or bullying behaviour by supervisors, lack of resources or an ill designed job.

''You should work through these external factors that undermine an employee's performance, so the issues are neutered if indeed it comes to termination,'' says Power.

''You will then need to put the issues squarely to your employee - the three warning approach is no longer a requirement.

''Then if you reach the point where it is quite clear that the only way is out, rather than take that step to unilaterally terminate, you might consider whether or not you can negotiate the separation.

''If you reach the final warning stage, you might say, 'Look, it's still not satisfactory and we are going to put you on some formal performance management. But it may be that you want to discuss with us some agreement about your termination. It's up to you, we are not forcing it on you, but it may be that you would like to leave.'

''Then you would discuss an agreement regarding resignation - perhaps you would pay out the resignation period plus a couple of weeks.

''It's just a way of getting someone out of the organisation without going that final step. You need to be careful about the way you manage that and have some guidelines in place as to how you do that.''

Taking the rap

Another issue not widely understood by employers is the concept of ''vicarious liability''.

This states that an employer has a legal responsibility for the actions of its workers (or agents) towards others in the workplace.

''This means that the employer takes the rap for what goes on in their workplace unless they have put things in place to prevent it from happening,'' says Power.

''It's a very real issue when there is discrimination or sexual harassment conduct. It's no good just going to your HR office to pull down some dusty policy which says people shouldn't sexually harass each other. You need to do more than that.

''You need to be able to point to the fact that you have inducted employees about that policy, that they are suitably aware of it and there have been sufficiently frequent refresher sessions on that policy so that people know what's not on and what they can do to complain about it.''

Vicarious liability in discrimination or sexual harassment cases can be defended if you can show that you took all 'reasonable precautions' to prevent the behaviour from occurring, says Power.

Taking the plunge

A Performance Management Plan should refer to the meeting at which the performance issues were discussed, describe the performance issue and record the steps that will be taken over time to address the issue.

It will also usually refer to the fact that the employee's ongoing employment may be in jeopardy if the unsatisfactory performance is not corrected.

Four steps to follow

1. Explain the unsatisfactory work performance to your employee, then provide them with an opportunity to respond.
Together, you should determine what must occur to remedy the situation and a reasonable period in which improvement should be shown.

2. After this, if your employee's work performance does not improve sufficiently, issue the employee with a written warning.

The warning should indicate what is expected of the employee, as well as the consequences that you will impose should they not show improvement.

3. If the employee still fails to improve, issue them with a final warning.

4. If, after taking all the previous steps, the employee's work performance still does not improve, inform the employee that you intend to dismiss them.

Explain why. Give the employee an opportunity to state any reason they believe dismissal should not occur and take it into account before finalising your decision.

Perrie Croshaw, September 1, 2008
My Small Business,


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