There are two main reasons employers seek our advice about existing employees. The first is that an employee has engaged in some form of misconduct, the other is that an employee is underperforming. Both issues should be approached very differently.
In cases of misconduct, employers should seek the advice of a lawyer before taking any action, particularly in cases of serious misconduct. However, when addressing underperformance, employers should follow these simple steps to ensure they comply with their legal obligations:
1. Identify the issue
Is the employee not meeting targets? Are they not performing in line with other employees? It is important to identify the problem correctly and precisely.
2. Assess the problem
How long has the problem existed? How serious is it? You need to outline exactly what is expected of the employee.
3. Meet with the employee
Discuss the problem with the employee and explain your expectations. Take time to answer any questions the employee has and identify any tools or training the employee may need to meet your expectations.
Then, create a timeline for improvement. You should give the employee a reasonable time to improve. Discuss a plan to monitor the employee’s progress and how meeting your expectations will be measured.
Importantly, when the meeting is over, the discussion and the outcomes should be summarised and emailed to the employee.
4. Monitor the employee’s performance
Schedule regular meetings to discuss the employee’s performance and whether they are meeting your expectations. This is important even if the problem has resolved. If there is an ongoing issue, you should discuss with your lawyer.
If the employee’s performance does not improve, more formal action may need to be taken, including warnings or even dismissal. However, the above are an import part of ensuring the dismissal will not be considered unfair under the Fair Work Act 2009.
If you have any questions about employment law, please call James Blaxland on (02) 6648 7487 who can readily provide advice on your specific circumstances.
This article is intended to be for information and educational purposes only and cannot be relied upon as legal advice. The information may not apply to your circumstances or to your particular situation. If you need specific advice or you have any questions, we welcome you to contact us directly.
