Performance ManagementAnna-Maria Wade, Employee Relations Manager

SA Workforce Symposium, 30 August 2019

The Experience

• Media coverage

• Announcement of ACRC

• Increase in number of enquiries regarding poor performance and misconduct

• Increase in the number of members requiring assistance with applications for

remedy of unfair dismissals

The Environment

Legislative & Regulatory

• Fair Work Act (FW Act) including the National Employment Standards (NES)

• Fair Work Regulations

• Modern awards

• Enterprise agreements

• Common law

• Fair Work Commission (FWC)

• Fair Work Ombudsman (FWO)

Legislative & Regulatory

• Aged Care Act

• Quality of Care Principles, Charter of Aged Care Rights, Aged Care Quality Standards

• WHS legislation and regulations

• Anti-discrimination legislation

• Medicines/therapeutic goods legislation

• Best practice guidelines & codes of practice

• Professional standards (registered health practitioners)

• Food safety standards

Organisational• Vision

• Mission

• Values

• Codes of conduct

• Policies

• Procedures

• Care plans, progress notes, medication charts, consent forms

• Memos, minutes of staff meetings

• Position descriptions, duty statements

The Definitions

Performance

• The action or process of performing a task or function

• Performance measurement:

– How well a person, machine etc. does a piece of work or activity

– Quality of work

– Quantity of work

– Job knowledge

– Working relationships

Poor or Underperformance• Quality

• Inaccurate, incomplete, incompetent

• Quantity

• Unproductive, poor time management, inability to meet deadlines

• Job knowledge

• Doesn’t have the skills and doesn’t understand the work

• Working relationships

• Works poorly with others, poor interpersonal communication skills

Misconduct

• Intent

• “Won’t do”

• Breach of policy and procedure

• Dishonest behaviour which can result in loss of trust and confidence

Serious Misconduct

• Fair Work Regulations 2009 (Reg 1.07)

• Wilful or deliberate behaviour

• Inconsistent with the continuation of the contract of employment

• Conduct that causes serious or imminent risk to the health and safety of a person; or reputation, viability or profitability

• Refusal to follow lawful and reasonable instruction

What is NOT Poor Performance or Misconduct

• Raising a complaint or allegations

• Temporary absence from work through illness or injury

• Union membership

• Ethnicity, age, gender, disability, marital status, family responsibilities etc.

• Workers’ compensation injury prevents them from returning to work for first 6 months of incapacity

• Parental leave

How do Performance and Conduct Issues Arise?

• Mismatch between capabilities and the job

• Unclear or no expectations

• Interpersonal differences

• Lack of motivation, low workplace morale, poor work environment

• Personal issues

• Cultural misunderstandings

• Workplace bullying

Performance Management

• Establishing, measuring and monitoring performance against organisational goals

• The way you deal with poor performance and misconduct

• The “disciplinary” process

• Underpinned by legislation, regulations and organisational policy and procedures

• Performance management or performance appraisal?

Why Bother?

• Underperformance and misconduct can undermine and threaten the success of an organisation

• Employees need feedback if they are to improve their performance

• Provision of better service to consumers

• Focus on what organisations, managers and employees need to succeed and be competitive

The Process

• Identify the issue

• How serious is it?

• How long has the issue existed?

• How wide is the gap between what is expected and what is being delivered?

• Is it a performance issue or is it misconduct?

Preliminaries

Informal

• Complaint, observation, consumer feedback, allegation

• Confidential discussion in a private place

• Opportunity to discuss any personal or other issues which may be impacting on performance

• File note with date, time, who was present

• Expectations moving forward, follow up and document each touch point

Formal

• Investigation – actual incident and background:– Previous file notes, appraisals, performance counselling

– Does employee understand quality and quantity of work required?

– Does employee have adequate training and access to equipment?

– Any factors outside the employee’s control?

• Written notification/letter – consider s 387 FW Act (2009)

s 387 FW Act (2009)(a) Valid reason for dismissal related to capacity or conduct

(b) Was person notified of reason?

(c) Was person given an opportunity to respond to that reason?

(d) Did employer allow for support person to assist at any discussions regarding dismissal?

(e) If reason was unsatisfactory performance, had employee been warned previously?

(f) Size of employer’s enterprise – impact on procedures followed in effecting dismissal

(g) Was there dedicated HR or HR expertise in the enterprise?

(h) Any other relevant matters

The Letter

• Specific details of allegations provided in writing to employee

• Dates, times, locations, what was allegedly said or done or not done

• Advise in writing possible outcomes/consequences of process e.g. PIP, termination, notification to AHPRA

• Ideally 48 hours’ notice

• Best practice to offer the ability for employee to bring a support person to meeting even if termination not on the table

The Letter

• Do not predetermine the outcome of the process in the letter detailing allegations BEFORE the employee has had opportunity to respond:

“In view of this recent unsatisfactory conduct, we have formed apreliminary view and consider that there are sufficient grounds toterminate your employment.”

The Meeting

• Explain the allegations – refer to letter

• Employee should be able to understand:

– What the problem is

– Why it is a problem

– How it impacts the workplace

– Why there is a concern

• Listen to and consider employee’s response

– Clarify details – probe further if necessary

Poor Performance – Outcome/s• Were the allegations substantiated?

• How serious was the breach?

• Performance/disciplinary history of the employee?

• Provide the minutes

• Formal Warning

• Performance Improvement Plan (PIP)

• Termination:

– Consider s 387 FW Act (2009) “harsh, unjust or unreasonable”

Performance Improvement & Monitoring• Outcome = ongoing employment with conditions:

– Formal warning (letter to employee and one on file)

– Performance Improvement Plan (PIP) with regular monitoring

• Reflect understanding of performance expectations and what is expected to be achieved over timeframe

• Clarify roles and responsibilities of employee and employer

• Include strategies for training and development

• Reinforce value and worth of the role being performed

• Seek feedback – colleagues and consumers (Standard 8)

Misconduct & Serious Misconduct

• Suspension pending further investigation is likely warranted

• Summary (instant) dismissal if warranted – recommend suspend first and seek advice

• May well be concurrent police investigation, mandatory reporting, AHPRA notification etc.

Termination and Unfair Dismissals

Warnings & Termination

• Not necessarily 3 strikes and you’re out

• Termination is likely fair and reasonable in an instance of theft

• Poor attendance/timekeeping without three warnings is likely harsh, unjust or unreasonable

• Timing of warnings

Unfair Dismissal

FW Act (2009) s385

• A person has been unfairly dismissed if the FWC is satisfied that:

• The person has been dismissed; and

• The dismissal was harsh, unjust or unreasonable; and

• The dismissal was not consistent with the Small Business Fair Dismissal Code; and

• The dismissal was not a case of genuine redundancy.

Unfair DismissalFW Act (2009) s387

(a) Valid reason for dismissal related to capacity or conduct

(b) Was person notified of reason?

(c) Was person given an opportunity to respond to that reason?

(d) Did employer allow for support person to assist at any discussions regarding dismissal?

(e) If reason was unsatisfactory performance, had employee been warned previously?

(f) Size of employer’s enterprise – impact on procedures followed in effecting dismissal

(g) Was there dedicated HR or HR expertise in the enterprise?

(h) Any other relevant matters

Unfair Dismissal Remedies

• Reinstatement

• Order for continuity of service

• Order to restore lost pay

• Compensation – maximum 26 weeks’ pay

Unfair Dismissal - Exclusions

• Terminated within “Minimum Employment Period”

• Earning > $148,700/pa and NOT covered by award or EA

• Casual employees unless regular and systematic work and reasonable expectation of continuing employment

• Genuine redundancies

ACSA Employee Relations• Hands-on front line HR experience in the aged care industry

• Assistance with day to day and more challenging ER matters including performance management and termination

• Liaison with unions on behalf of members

• Representing members in FWC – modern award 4 yearly reviews, conciliations

• ER newsletters and alerts

• employeeRelations@acsa.asn.au