When conducting an investigation and determining which path to take on the discipline process, you may find yourself confused between misconduct and poor performance. Is it in fact that the employee is incapable of performing the required task or are they consciously choosing not to do it?
Misconduct is recognised by the Labour Relations Act as an "employee fault" dismissal. In order for there to be misconduct a rule needs to have been broken. In order to proceed with a misconduct dismissal you need to have developed your approach to discipline in your workplace.
The Code of Good Practice in Chapter 8 of the LRA defines how a misconduct dismissal can be approached:
- The employer must be able to prove that the employee has broken a rule. Do you have rules in place at your workplace?
- The employer must be able to prove that the employee was aware of the rule or it is reasonable to expect them to be aware of the rule. Are your records in order? Do you have policies in place that your employees have acknowledged?
- The rule must be consistently applied. Are you fair and consistent in your approach to discipline?
Poor Performance is recognised as a "no fault" dismissal. Your employee, despite receiving guidance, training and being evaluated simply cannot achieve the required performance standards in your business. Basically, is your employee doing their job properly? To dismiss for poor performance is a time consuming process.
- The employer will have to prove that the employee did not meet existing and known performance standards. How are you implementing standards into your workplace?
- The poor performance must be investigated (measurable facts available as evidence). The root cause of the non-performance must be identified and understood.
- Documented counselling session must have taken place.
- Areas of concern must be identified and methods to improve or rectify the issue must be carried out - this could mean more training needs to take place.
- The employee must be given the opportunity to rectify their performance.
Employers will always have to reflect and investigate what is the real reason for an employees failure to perform. If the employee really does not have the ability or skill to do the job then the matter must be processed through a poor performance management process. But if the employee has previously performed well and met the standards set then they have chosen to perform poorly and this can be processed through a misconduct discipline process.
Whether it is poor performance or misconduct the employee can still face dismissal.
If you need assistance in implementing standards, procedures and guidance through the misconduct or performance management process please feel free to contact Executive Risk Management.