Formal intervention

There is no specific requirement under employment legislation to give employees a series of warnings before dismissal. However, 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.

With most performance issues it would be best to start with an informal process. Often an issue can be quickly resolved without going through a formal process.

Your employment agreement or policies may specify how many, and the type of, warnings that may be used. Where this is the case then you must follow the terms and conditions of employment.

Where the number and type of warnings are not specified, then it’s best to err on the side of caution and give at least: a written warning, and a final written warning before terminating an employee. What is appropriate must be what a fair and reasonable employer could do in the circumstances. Try to stand back and consider objectively.

Remember, when making decisions on the nature, type and number of warnings, you need to take into account such things as:

• the difficulty and type of tasks involved
• the impact of any ongoing performance issues on the organisation (eg the size of the organisation and its ability to absorb/carry the under-performance)
• the employee’s length of service
• the effort and progress toward improvement
• whether the performance issue was contributed to by the employer (lack of role clarity, job structure, expectations not clear, cultural misunderstandings, etc)
• whether there were personal issues (physical or mental health, family).

Oral warnings

Some employment agreements require the use of oral or verbal warnings before any written warnings are issued. If this is required then follow this process. If not, then it’s best to avoid oral warnings (as they’re difficult to ensure a clear process has been followed and may be contested). If you do feel the need to ‘warn’ an employee informally, you may choose to say that you are issuing them with a ‘caution’.

Sometimes employees say that the management of performance issues is not reasonable and may claim that the process itself is bullying or harassment. If this happens:

• get another person (manager, HR or external person) to investigate the claim
• use a different manager to manage the performance issues. Don’t stop the process
• if the investigation shows there is no bullying the initial manager can return to take over manging the performance issue
• do not stop the performance management process while the claim is investigated
• offer EAP, counselling or similar.

Generally, if good processes are followed, then it is not bullying or harassment when:

• issuing reasonable and lawful verbal and/or written work-related instructions and requiring them to be carried out
• insisting on high and consistent standards of performance in terms of quality, safety and team cooperation
• making legitimate criticisms about work performance
• giving negative feedback
• assertively expressing opinions that are different from others
• warning or disciplining employees in line with sound organisation performance policies.

The approach to managing a bullying or harassment claim, (or stress claim, which often accompanies a claim of bullying) is to make sure that:

• all employees understand:
• what is and what is and is not workplace bullying and harassment,
• the difference between bullying or harassment and that and reasonable actions that managers can take. Many employees when making complaints do not understand the difference.
• all managers have a good understanding of and training in:
• giving feedback
• reasonable actions that managers can take
• a fair process
• possible outcomes for not getting up to the required level of performance.

This will make it easier and less stressful on everyone when dealing with employees who are not fully performing in their role or who are disruptive.

While formal or informal performance management is being done by a manager, or when the manager gives negative feedback, an employee might claim that:

• their performance issues are due to stress
• the performance management process is causing stress.

If they claim that their performance issues are due to stress, the manager can:

• ask for medical evidence
• reconsider review dates
• offer EAP, counselling or similar
• consider other relevant circumstances (ie personal issues or workplace issues raised) when making a decision on whether to issue a warning or dismiss.

If they claim that the performance management is causing stress, the manager can:

• review their expectations and process to make sure they’re reasonable – it may be worth getting someone else to check they’re reasonable
• determine if any steps can be put in place to reduce stress – using medical evidence
• offer EAP, counselling or similar.

As long as the process followed is fair and reasonable, there is no reason to stop. You cannot force an employee to meet with you if they are away from work because they are genuinely sick – but you could request a medical certificate.