Performance Management - Employees over the unfair dismissal threshold

[Gyro]

Hi All,

We have an individual who has been underperforming for longer than i have been with the organisation and while there have been several instances where they have been performance managed in the past their performance improves for the review period then slides back down to an unacceptable level shortly after the review period is over. There have also been a couple of conduct issues but nothing that would result in termination, these did result in written warnings. We have not had consistency in annual performance reviews which has made it tricky, I have recently implemented this annual process.

I have been instructing the employees manager to continue to manage this individual in accordance with our PM guidelines with my help which includes all the informal and formal stages even though they are over the unfair dismissal threshold. This has repeatedly resulted in the individuul doing just enough to ger over the line each time. We are now at the point where it is doing the team and organisation more harm than good by keeping them and we need to take action on a more permanent basis. As they are over the unfair dimissal threshold I was wondering if there are any issues to be mindful of if we fast track the performance management process on to termination? As we are undergoing a review of every position in the org at the moment when have come to the conclusion that this individual is not performing at the level required for the job and also their salary.

I have always followed the protocol in accordance with PM guidelines based on the situation, and also mindful of unfair dismissal issues if the process isn't followed appropriately. So I am not entirely sure if there could be any repercussions for an employer regarding individuals over the threshold if the full process is not followed.

Has anyone out there had to deal with a situation like this before? I'd be keen to hear what you did to get around the issue, if it means continuing to run through the full process which I have been doing then so be it however if there is an alternative I haven;t thought of I would be keen to look into it :-)

Thanks

Gyro

[Tiger]

Yes, been in this situation in a good many before. Key is consistency, fairness and follow-thru. If there is a gap (say more than 6 mos) since last time he underwent performance management, I recommend starting process again.
You indicate you've implemented a new process - that is good. Start this guy off with the new process making it clear to him it is a new process and just how it works. Important the monitoring goes on for longer than has been done in the past since he seems to pull up his socks for a while before relapsing. I'd be pointing out to him his previous record and that despite the performance management processes already done with him, he seems unable to sustain the improvement. I'd be asking why he thinks that is? Try ascertaining whether he actually has the capability to do the job in a sustainable way - that might involve some assessments, retraining, etc. Be open and honest about what and why - he must understand the status quo cannot go on as it is. I think it is important for these employee types to understand that unless there is marked sustained improvement, you will be reconsidering your options of retaining him in his current job.
Be careful to not be seen to be picking on just him however. Such conversations should be well thought out beforehand (script if you have to) so that they are general enough (meaning your intent is this scenario would apply to any job incumbent) but get your point across. Document this meeting, have him sign and give him a copy to retain.
You don't say whether he is a blue collar worker and thus a union member? If so, tread carefully.
To be frank, I think this might be one of those cases where you need to have an ongoing performance monitoring. Why not consider half yearly reviews for all even if the half yearly is less formal/structured than the annual, it kind of keeps employees on their toes a bit because everybody knows the half yearly goes toward the annual result. Of course the size of your business will impact this decision and whether you have an online system in place (more efficient).
Finally, check just what his last few annual performance ratings have been. If they've been OK (average or above), then clearly your management is being soft but more importantly, that will have sent the wrong message to this guy that he is doing ok. Lastly, if he is not performing, red line his salary but to do that his rating has to be in synch so indicate why you are doing that.
Last org I worked for gave no second chances, if you were performance managed, it was pretty much a certainty that your number was up - but then that was a global org with a sales focus and they were tough.
I believe employment laws in Australia have gone too far giving employees the wrong signal that employers can't do anything to them any more. Sometimes you just have to bite the bullet. Of course there is now adverse action - had one of those 2 yrs ago where even after doing everything by the book before eventually terminating him, he went that route and got a couple of grand out of the company. It was so over the top in terms of what he'd done, one has to scratch one's head at the idiots who run these tribunals but my point is that sometimes you just have to cop it sweet and pay out - at least you got rid of the non-performer and other employees see you have taken action and that is a positive sign.
Good luck with this
Tiger

[NicoleAnita]

Hi Gyro

Some more points to consider as well as the above that Tiger has suggested. You do not have to start the whole process again as long as the bad performance is consistent with what went on 6 months ago. For example: If it was job related or sick leave etc then you can use that information to your advantage. A Commission is only interested in Fair Procedure and if you can demonstrate that then you should be OK. I would gather all of the information you have and sit down with this person's Manager and really find out why this has been allowed to go on for such a long time. Then you will need to have the conversation with the employee (giving him/her notice and allowing a support person) and make clear that their position is in jeopardy if they do not improve.

As for salary you really cannot lower an employees salary unless they are doing a lower skilled job. If it is a blue collar worker that should be easy (think competencies etc) but tread carefully if they are not. As for Unions, I wouldn't get too worried about that. I have had to performance manage a Union Delegate for Bullying with his Union present and as long as you have all of your facts and evidence (including statements etc) the Union's usually want a fair resolution anyway. Just also be aware that there is Unlawful Termination available for employees.

Tiger - my husband is a member of the Fair Work Commission and he is no idiot! Perhaps your company did not take into account the Adverse Action route?

Cheers

[Tasman McManis]

Hi Gyro,

One longer term suggestion I like to offer to my clients is that managers should meet with their employees on a formal basis for 20-30 minutes once a month. Most throw their hands up in horror and say they don't have the time although they talk to their employees at least weekly and often daily (we are talking normal span of control around 10 employees). In this discussion they review activities over the last month, what has worked, not worked, review next months work plan etc. This is all documented and both parties have a copy of the one page document. It means that performance issues are identified early, changes put in place and outcomes tracked. It also makes the discussions easier at years end for the performance review. This approach would fit with your need to monitor your employee and to also cover all managers and employees not only the "problem child". Cheers Tas

[Gyro]

Thanks for the feedback guys it's very helpful

The recently implemented performance and development review process (PDR) is designed to ensure regular catch ups between manager and empployee on their performance and well documented in their PDR file. The unfortunate thing is we haven't had consistency for a number of reasons but the main reason has been due to the fact that for the last 12months we have been unsure of the future of the company. It's diffucult to implement things when you don't know if anyone will have a job.

No unions here, all white collar. Our project isn't in production yet.

Also NicoleAnita I am not looking at reducing a salary I was just thinking about the potential risks in fast tracking a PM process with someone that earns over the unfair dismissal threshold who has been performance managed mostly informally in the past and continues to underperform.

I have done a little more investigating and it would seem that while they cannot file an unfair dismissal claim they could claim under 'General Protections' but as you say NicoleAnita so long as we can demostrate the process followed was fair then it should be ok. Still not overly convinced as I am not one to shortcut a process.

thanks again for all your assistance :-)