Performance and conduct management in 5 (ahem ...) easy steps

So you’ve got someone in your team who is underperforming, or perhaps their behaviour is out of line with your organisation’s values. It would be a rare business out there that isn’t currently or hasn’t recently experienced this issue. Dealing with it though is another matter. You can do all the ‘difficult conversations’ training you like; it doesn’t really prepare you for the discomfort of sitting down with someone and saying “we’ve got a problem here”. But there are some reasonably straightforward steps you can take to make the process easier and the sooner you address it, the easier, faster and less stressful the process is for everyone involved. And it significantly mitigates your risk if things do ultimately turn completely pear-shaped.

1. Gather your evidence. I can’t tell you how many performance or conduct discussions I have turned up to support, assured that the manager has evidence only to find that they really don’t. They might have a single example or have spoken to someone - possibly even multiple times - about an issue but then never fully recorded it or - very common - have an example/s of something the person only has a small amount of control over allowing them to deflect blame (sometimes genuinely) to another area or team. What is useful as evidence? For performance, quantitative measures are great; the number of clients serviced, calls answered, sales figures, etc. Basically, targets not met. For behavioural matters, you might email yourself each time you have a behaviour you want to record that perhaps isn’t significant enough to raise on its own, but as part of a pattern is having an impact (lateness, missing hours of work, rudeness, etc). Those emails provide a date stamped account of the times you’ve witnessed it (note when you’re doing this, make sure your emails are very factual and non-emotional: “Barry arrived at work at 10 am”.)

2. Start early and informally. The best outcomes happen when we nip issues in the bud. Start from a place of curiosity and support for your first meeting or two. “Barry, you’ve been in late a couple of times this week, is there anything going on you need support with?” Or “Barry, you’ve been a bit snappy in the office/your sales figures are down/you and Fred don’t seem to be gelling, is there anything going on you need support with?” If you go into these early conversations with genuine concern and care, listen and provide reasonable supports you will resolve almost every issue quickly whilst building trust. Win-win. Stop and reconvene if you or they need time to think about a solution or calm down.

You are obligated to take in to account any mitigating factors (illness, stress, feedback about how you/the organisation/colleagues have contributed to the situation etc). You might think their response is unfair/unwarranted and sometimes it will be so out of line that it’s not worth entertaining, but other than those instances just go with it. In doing so you’re drafting a social contract where you’re giving so that if harder lines need to be drawn you have already been the bigger person. This is extremely powerful but it only works if you don’t break your end of the bargain, so don’t make promises you’re unlikely to be able to keep and if you have to break them, work out an alternative in consultation with the employee.

3. Then document this and any further performance or conduct conversation in a friendly email: “Barry, I just wanted to note down what we’ve agreed to do to support you in X issue. We’re going to do X and Y, and you’re going to do A and B by C date and we’ll review progress on D date … just let me know if I have missed or misunderstood anything”. I can not stress how important this step is. This forms part of your evidence if things don't improve or get worse. The invitation to clarify anything they wish to means that if you ever have to rely on that email it becomes difficult for the person to say it’s an inaccurate account of what was agreed to. I finish every performance or conduct email in this way even if it was just a friendly chat – sometimes, where things have reached a more formal pitch, I'll add a request that "any feedback be provided by x date, otherwise it will be assumed this is an accurate reflection of what we have discussed”. Asking for employee input throughout the process is key to fair process.

4. When to move to a formal process is an art rather than a science. It depends on whether you’re seeing adequate improvement in their performance or conduct. If it's getting there just not quite as fast as you'd like stick with the informal - continuing to document it. Moving to a formal process is inherently adversarial even if you're as kind about it as you can be, so if you can avoid it and get the outcome you're seeking then do so. But don't wait too long if you're not seeing improvements. No one involved in a formal process enjoys this process so it tends to be avoided and things get progressively worse annnd then the manager ends up telling HR they need to sack this person now and we have told you you can’t ... and everyone is sad. Sacking people is not actually very hard if you follow a good process and have good evidence throughout. That's why even if you start informally and with no intention of ever having to terminate the person, you should begin with the assumption you may have to end the person's employment at some point and so follow all the steps (such as documenting what you've agreed) along the way. Otherwise, it is basically a matter of starting from scratch if you haven’t. And while the 'three warnings' thing is a myth, it's still cleaner, fairer and faster to start things off well, to begin with.

“But their underperformance/misconduct is serious, I should be able to sack them now!”. Still - usually - no. The FairWork definition of serious misconduct is actually quite a high bar to meet and requires wilful or deliberate action on the behalf of the accused to damage your business or another person in some way. This is hard to prove. So unless you’re sure that the conduct fits this definition (and I would always seek legal advice on a dismissal, especially a summary dismissal - that is dismissal without notice) start with good process.

What makes a process formal? Basically by saying it is so. That means declaring to the person that a failure to improve their conduct or performance may result in further disciplinary action, including the possibility of their employment being terminated.

This is a horrible thing to have to say to someone, and as you can imagine it is very confronting for them. However, part of the fairness of a formal process is ensuring that the person is made aware of the potential implications of their actions. I often soften it by saying "while at this point I don't anticipate this will be an outcome if we can resolve X matter, this process may include termination of your employment'. I am not going to go into describing all the elements of a good formal process here because it’s long – but the FairWork Ombudsman has great resources here. Key principles though - have evidence, give the person a chance to explain themselves and improve, document your conversations, get advice from an industry body or lawyer if you’re thinking of moving toward termination.

5. A final note to remember – you’re obligations are to reasonably take in to account any mitigating factors raised by the staff member, and to not act harshly in your dealings. What 'reasonable' and ‘harsh’ mean depends entirely on the circumstances – but takes in to account factors that may not be obvious to many managers and employers. As per the FairWork Ombudsman's unfair dismissal bench book:

"A dismissal may be:

[U]njust because the employee was not guilty of the alleged misconduct

Unreasonable because the evidence or material before the employer did not support the conclusion

Harsh on the employee due to the economic and personal consequences resulting from being dismissed, or

Harsh because the outcome is disproportionate to the gravity of the misconduct (the punishment does not fit the crime)"

For example, if you know that terminating someone is going to put them in severe financial hardship, if their conduct is not very serious the Commission may determine (if the person pursues it) that you have acted harshly. This is why getting advice and giving the person who is advising you all the information you have is so important. I can’t tell you how many managers have said to me “well, we just won’t tell the lawyers that bit” as if not telling the lawyer will make the issue go away. Employment law is nuanced and complex, you need to provide as much information to your advisors as you can.

You must factor in too other information you might have, like whether the person is unwell, if they have made a workplace complaint, or been involved in protected industrial action. For example if you have someone that says they can't perform due to mental illness, in responding you have to give consideration not just to whether your actions are reasonable in the context of unfair dismissal laws, but also general protections laws (laws that protect employees from dismissal or another action by an employer that disadvantage them in response to them exercising a workplace right, their industrial activities or a protected attribute such as illness – see here for more information plus workplace health and safety, and discrimination laws. What is reasonable and isn't will depend on the circumstances of each case, including the size of the business, the organisation's financial status etc.

I know - it can all feel too overwhelming, but if you start back at the beginning: informally and with genuine curiosity, asking for employee input and providing reasonable supports to improve performance, and documenting everything as you go - you mitigate a lot of risk and you're most of the way there if you can't turn things around.

Please note, this post does not represent legal advice and I can't stress enough how important it is to get advice if you are thinking about terminating an employee. You can usually get cost effective advice from your industry body or State chamber of commerce, or, obviously from your lawyer. The FairWork site has some great resources too.