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General Guidelines

on Disciplinary Procedures

Whether you are working through a possible disciplinary procedure for poor performance, misconduct or serious misconduct - as an employer, HR professional, business owner or manager, you need to ensure that you treat the employee in good faith and follow a fair and reasonable process. Below are some guidelines on working through  a Performance Plan process (which you should do before you consider any warnings), and then how to handle disciplinary procedures fairly if an employee still isn’t meeting expectations, or there is alleged misconduct or serious misconduct,


Performance Plan Meetings


Pre-Meeting: This meeting is not a formal meeting. You should arrange a meeting a day in advance and let the person know that you want to discuss some areas of their performance.  They do not need to have the opportunity to bring a support person.  If they ask, it’s up to you as to whether you agree or not.


Purpose: At the beginning of the meeting be clear that this is a meeting to discuss concerns about the employee’s performance and put in place a plan to assist them to improve.  It is not a formal meeting (under a disciplinary process).  The outcome of this meeting is having a performance improvement plan put in place.


If they bring a support person, agree the role of the support person at the beginning of the meeting – generally they can provide support but you want the employee to engage in the conversation.  


Give the employee an outline of the meeting:


Explain that you will take brief notes and put these in a letter for the employee (be clear that as this is not a formal meeting detailed notes won’t be taken). Then commence the meeting.


Explaining specific concerns

The manager goes through the concerns about performance

• Be succinct but specific with what you want to raise with your employee

•  Have your examples ready if your employee doesn’t understand or questions you

•  Make sure you have the reasons why this concerns you (e.g. the impact on customers, the rest of the team etc).


Employee explanation

Ask your employee to explain why they think there are issues. If they struggle to answer you might want to try some leading questions: “Do you think it might be because ….?” Make sure you take notes of what they think the reasons are.

If your employee has no explanations, then you can try and explain “I’m trying to help fix this so I need to know what you think is causing the problem. Can you help me at all?”


Tip: If the employee brings up other issues such as health etc, you will need to ensure you get all the information you need, and ask the employee what the impact of this is and what suggestions they have for managing it. If there is something major that changes the entire situation you may need to adjourn to discuss.


Tip: If the employee claims that they have never been told there is an issue you can briefly go over what conversations have happened previously but focus them on that there is an issue, and the performance improvement plan will clearly set out the issues, what is required and what needs to be done to meet the standards.


Performance Standards

Reiterate the standards required for each area and ask the employee the ideas that they have for fixing the issue. Here’s where you must be very careful NOT to take on that monkey. The best way to do this is to ask your employee: “What are your suggestions for fixing this problem? OR “How do you think we can fix this?” OR “What can you do to stop this happening again?”

Note down what their suggestions are on the draft performance improvement plan. You can also add your own suggestions. If an employee suggests something that isn’t going to work, thank them for the suggestion but say you don’t think that will work. Ask what else can they can think of?  Make sure the employee is responsible for some of the actions, although there may be some things you need to do to support them.


Discuss time frames and regular review meetings to help check that things are on track. Reiterate that point of the plan is to help improve within the time frames, as need employee to be working at the required standards.   Only if all the standards are not met, would the process move to a formal meeting.


Tip:  The support person may say that it’s not right to put a PIP in place. Explain that you have provided informal feedback/performance objectives/have had regular meetings; and that performance is not at the level required.  The plan is not part of a formal process and is there to help the employee reach the level of performance required.


Finish the meeting & finalise the performance plan

Finish the meeting. Thank the employee for their input and explain that you will put the key notes from the meeting in a letter to the employee and finalise the performance improvement plan and give to employee.  Agree date that performance plan will commence.



Disciplinary Procedures


While there is little in the Employment Relations Act about how to run a fair and reasonable disciplinary process, from case law we know that the appropriate steps are:

  1. Investigate what the issue is. This may involve getting examples of performance, reviewing documents or camera footage,running reports or taking statements from witnesses
  2. During the investigation you may need to suspend the employee
  3. You must then advise in writing that you want to meet. The letter you provide must include the allegations and explain that in the meeting the employee will have the opportunity to explain and no decision will be made until this is considered. You must also advise that they can bring a support person, what outcomes may occur and when and where the meeting is. You need to provide at least 24 hours notice so the employee can organise a support person and you may have to move the meeting if the employee has not got time to do this.
  4. You then meet and talk through the allegations, and allow the employee to provide their explanation.
  5. You then end the meeting or adjourn to consider what outcome may be fair and reasonable.
  6. You meet again (or reconvene) to advise the employee of the decision.
  7. Put this in writing and then monitor if the performance improves, or misconduct or serious misconduct occurs again. If you are considering dismissal you must advise the employee, and allow an adjournment for them to provide any further information.


From a legal perspective it’s important to have an open mind and listen to the employee’s side of the story before you make any decision concerning action  - this is important in how you run the meeting. General guidelines to follow when running a disciplinary meeting include:

 Introduce all parties and their roles in the meeting

 Explain that you will be taking notes

 Re-iterate the confidentiality of the process

 Ask if they have any questions before you start

 Explain what the allegations are – what is the background, what policy or process has been breached?  What “evidence” or documentation do you have to substantiate the allegation (e.g. customer compliant, financial records)?

 To ensure the employee understands these are just allegations, terms like “it appears that” “this may have occurred” explain that you are only discussing an allegation at this stage.

 Once you have explained the allegations, give the employee the opportunity to explain, provide information, or ask questions.

 If any part of the employee’s explanation is unclear, you can ask clarifying questions.

 If they don’t provide any explanation you can ask them open questions to try and get them to provide some type of response.  However, if they won’t respond, the most important thing is to make sure you have given them the opportunity to give a response before you make any decision.

 Once the employee has finished, adjourn the meeting to consider their explanation.

 The length of the adjournment will depend on the complexity of the issue – it could be 15 minutes or you may have to investigate further and adjourn to the next day.

 Consider the employee’s explanation – were there mitigating factors, is the employee remorseful, is this the first offence?

 Decide on the appropriate action.  This could be no further action, a warning or where it is serious misconduct, dismissal. Consider what has happened in similar situations in your organization and the seriousness of the situation. Also consider if they have current warnings on file for similar issues.

 When you re-adjourn advise the employee of your decision and why you have made this decision.

 NOTE:  If dismissal is the decision then legally you must advise the employee you are considering dismissal and give them a final chance to comment or provide any further response before you confirm the decision.


Warnings


Dismissals




How can the people professions help with poor performance or disciplinary procedures?


Your HR team can either advise a manager or business owner on the process at each step to ensure you act in a fair and reasonable manner, or may also lead the process. For managers who have worked with the employee for a long time, having your HR person run the process can be less emotional and ensure the employee is treated fairly and consistently. If a manager doesn’t have much experience, then your HR person can bring their knowledge and experience to the process.


Your payroll team can process termination payments or other payments to the employee and answer questions about the calculation of these.


Your talent team will not usually have involvement in this process.


Your learning team can design training for managers on how to effectively manage a team, deal with conflict, work through disciplinary or poor performance processes and motivate and coach their team.





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