Managing 101

MANAGING 101 WHAT YOU NEED TO KNOW AS AN EMPLOYER

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WHAT YOU'LL FIND INSIDE

Managing poor performance

3

Creating a performance development plan

4

Managing ill or injured employees

5

Demystifying the warning system

6

Executing and enforcing key workplace policies

7

MANAGING POOR PERFORMING EMPLOYEES Having to deal with an under-performing employee can be a daunting task for any employer, but it doesn't need to be. Flagging the issue with the poor-performing employee early and workshopping some actual solutions will be incredibly helpful for all parties and reduce the need to take more formal steps. We have detailed below a few things to keep in mind when you have a poor performing employee.

What constitutes 'poor performance'? How does it manifest?

What are some strategies to deal with under-performing employees?

Underperformance/poor performance is different from

Initially it is always best practice to have a

misconduct, and often manifests through unsatisfactory work

discussion with your employee to ascertain the reasons behind the

outcomes, disruptive or negative behaviour in the workplace,

poor performance, and what can be done to aid them at work.

frank and open

and/or non-compliance with workplace policies/standards.

After a consultation with your employee where they can provide

What are the reasons for an employee's poor performance?

An employee doesn't know what is expected of them; The employee is not correctly trained; The employee doesn't have the requisite skills or knowledge; Personal issues - i.e. undue stress, physical and/or mental

context for their underperformance, further avenues and strategies are available to you as the employer, including:

Providing counselling and mentoring; Providing professional training and development; Amending their duties or position;

health problems, problems with drugs or alcohol etc.;

Clarifying the performance requirements for their position;

Workplace bullying or harassment; and/or

Creating a mutually agreeable development plan; and/or

Interpersonal or cultural differences

Terminating their employment (if their performance does not get better).

CREATING A DEVELOPMENT PLAN So you've had a frank and honest discussion with your employee about their performance, and were able to ascertain the reasons behind it. That's a great starting point! Now you're keen to develop a solution, but have no idea where to start. Below we have put together a range of key things to include in your employee's development plan, so you don't miss out on the important bits.

1.

Document goals

3.

Detail resources + support available

By verbalising and documenting goals for your employee, it

It's often difficult to achieve something alone, and you will

provides them with something to strive towards (and something for

be put in a much better light if you also offer resources

you to mark against if they fail).

and support to enable the employee to achieve their goals. Fail to do this, and you are less protected if you

2.

Set deadlines for achieving those goals Working out the goals with your underperforming employee is a great start - but they also need to know how much time they have

3

seek to terminate their employment at a later stage.

5.

Detail the consultation + review procedures

to achieve them. Giving someone three weeks to do what is really

It is important to regularly check in with your employee to

a three month task, will not be seen by a Court to be reasonable.

see (either informally or formally) how they are tracking

Therefore, give them deadlines that are reasonable.

with the achievement of their workplace goals. By doing

Define metrics

so, it gives you - as the employer - an opportunity to give feedback on the work that they are currently doing, and

To measure your employee's productivity towards reaching

gives the employee the chance to be heard. As a side

their aforementioned goals, you need some sort of

note, it will also put the employer in a better legal

yardstick. Defining the metrics by which the employee will

position if it does proceed with disciplinary action down

be reviewed upon is useful, as both parties are aware of

the line.

what is required of them, and can refer to them at any stage.

MANAGING ILL + INJURED EMPLOYEES It can be such a tough space for everyone involved when an employee is away from work for extended periods with an illness or injury. The difficulty from an employers' perspective is how to balance the risk of a discrimination/workers compensation claim, against the risk of being under-resourced (and making other employees pick up the extra work). Below we have compiled some key information to help you - as employers - to navigate this very treacherous time for your business.

What obligations do I have as an employer?

How do I help my employee return to work?

What if I want to terminate the employee's employment?

Each State and Territory has a slightly

Helping your ill + injured employee get

Generally, it is illegal to terminate an

different system in place, however

back to work can be difficult, but with the

employee on the basis of incapacity or

generally employers with ill/injured

right tools, you can make it a far easier

absence due to illness/injury. However,

employees are required to:

process. This includes:

there are ways to transition an employee

provide the employee (and other employees) with a safe working environment; provide the employee with any reasonable supports; comply with their own OHS policy (including incident reporting to regulator - if applicable); and not take any disciplinary action simply because of the employee's disability / injury (or the taking of personal leave).

appointing a return-to-work

out of the business if certain steps and

coordinator;

criteria are first met.

providing any reasonable supports (e.g. alter their work environment; providing counselling and professional help where needed; regularly checking in with them on how they are going; and considering directing them to attend an

For example, employers need to comply with timing requirements, obtain the right medical evidence, and seek the employee's response to the proposed termination before proceeding.

independent medical examination (IME); and work closely with your insurer.

Given the risks, we always recommend calling a lawyer too!

DEMYSTIFYING THE WARNING SYSTEM Warnings - formal or informal - are a great way in which employers can get their message across to an employee and put itself in a better position if it wants to proceed with a termination. But despite their benefits, a range of myths and questions exist about them. We set out some of the main ones below.

If I give three warnings, I can terminate without any risks

I can use warnings that I gave 3 years ago as a basis to terminate their employment npw

FALSE: A common misconception around giving

FALSE: A Court will often find that a warning issued a

warnings is the number required before terminating a

long time ago is not a lawful basis to terminate an

worker. There is no set number of warnings required

employee's employment now. For warnings to be

before you terminate an employee (unless you have an

successfully relied upon, they need to be relevant to the

EBA or policy that says otherwise).

current allegation, and be fairly recent.

A written formal warning is often better than a verbal warning TRUE: If you are worried that the employee may lodge a claim, it is often better to put the warning in writing and make sure it includes:

Warnings for poor performance are the same as warnings for misconduct FALSE: Although the structure of the warning may be the same for both misconduct and poor performance (see Point 2), misconduct warnings are generally treated with more severity. Poor performance warnings are also more

details of the allegations; confirmation that you put the allegations to them, considered their response, and decided to give them a formal warning; and statement that further breaches may lead to termination.

likely to involve a process of evaluation and goal-setting through a performance development plan and several consultations with the employee, misconduct will simply address the contravening behaviour at first instance.

KEY WORKPLACE POLICIES To keep your workplace running smoothly, it's important to set down some ground rules. Workplace policies achieve this for your business, and that's why it's so important to ensure that they are all in place, compliant and up to date. Below are seven of the key policies that should be in place to help your business succeed.

1. CODE OF CONDUCT A Code of Conduct sets expectations on appropriate (and inappropriate) behaviour and ensures accountability if they are not met. A good Code of Conduct is tailored to the company's actual activities and programs.

4. ANTI-DISCRIMINATION, BULLYING + HARASSMENT An anti-discrimination, bullying and harassment policy is vital to ensure that everyone feels safe in the workplace. It should detail the types of inappropriate behaviour that are not tolerated, and set out clear responsibilities of all

2. PRIVACY

employees to deal with this behaviour. How an employee

A privacy policy is important to set out how

should also be included.

can lodge a complaint (and where they can find support)

sensitive, confidential and personal information is to be used, and what process should take

As with all policies, it should be clear that failure to

place if a breach occurs.

follow the policy will be met with disciplinary

3. SOCIAL MEDIA A well-drafted Social Media Policy is a must nowadays to set out what employees can (and cannot) do online. Just because something is posted online after-hours, does not necessarily mean that it won't result in disciplinary action at work.

action, including up to termination of

employment.

KEY WORKPLACE POLICIES CONT. 6. OCCUPATIONAL HEALTH + SAFETY (OH+S) OH+S is a non-negotiable in business, whether you are operating a retail superstore, or a one-person office. It is one of those areas that can sink your business if you are not careful.

5. LEAVE We don't want to regurgitate employee's leave entitlements. This is done perfectly fine

Notwithstanding the risk to the business, you owe a legal and ethical duty of care to your employees to ensure that they are provided with a safe working environment. No ifs and buts.

under the NES, any applicable Modern Award / EBA, and in their contract.

A good OH&S policy should help you meet this obligation, by setting out responsibilities, incident reporting, risk management

What we do want to do is have a policy that sets out the practicalities of those entitlements. For example, how much notice

and where to go for help.

7. GRIEVANCES

should I provide when I apply for leave, where does the leave application go, are there any periods of shutdown etc.

Grievance policies seek to foster open communication between employers and employees alike, and encourage anyone engaged within the business - employees, contractors, volunteers etc - to speak up and resolve any issues before they become major concerns. It also formalises the procedures, if a grievance or complaint is elevated.