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Resolving Performance Problems SOP

Section
Corporate
To be read in conjunction with

Resolving Performance Problems Policy

Approval Date
28 June 2007
Approved By
Chief Executive
Responsibility
Deputy Chief Executive: People, Culture and Safety
Procedure

Schedule 1:  RESOLVING WORK PERFORMANCE PROBLEMS

While it may ultimately be necessary to employ the formal disciplinary process to resolve a case of failure to achieve reasonable performance standards, in most cases Formal Leaders will have followed a less formal process to improve performance first.

 

Where standards of performance have not been set and communicated to the employee, Formal Leaders will review the position description with the employee and set reasonable and objective standards.

 

Where performance standards have been set and communicated and an employee fails to perform to the required standard, Formal Leaders will:

 

  • Review the employee’s performance and provide objective feedback on the employee’s performance in relation to the relevant performance standard. The Polytechnic will use its best endeavours to ensure the employee is fully aware of the problems with their performance.
  • Review the employee’s workload to ensure that there are no unreasonable expectations.
  • Clarify the performance standards expected of the employee initially verbally and then set them out in writing.
  • Discuss with the employee strategies to achieve the required level of performance, including determining if training is required and what action it is practicable for Otago Polytechnic Ltd to take to assist the employee.
  • Determine the timeframe for improvement and how the improvements will be assessed.
  • Carry out any action and/or provide any support agreed.
  • Monitor the employee’s performance during the agreed timeframe.
  • Review progress at the time agreed.
  • Keep file notes of discussions with the employee as an informal record.
  • The employee must be invited to have a support person and/or representative at any meeting.

 

If this process does not resolve the performance problem, the Formal Leader will decide if the issue is serious enough to progress to the formal disciplinary process. If disciplinary action is to be taken the employee will be advised of this and a letter similar to the example letter in appendix 2 will be issued.

 

Formal Leaders should consult the People and Culture for advice as needed during the performance counselling process and must consult before commencing any formal disciplinary action. A sample letter for documenting performance concerns and agreed actions is attached as Appendix B.  The People and Culture Team must be consulted prior to issuing a letter of this kind.

 

Schedule 2:  PROGRESSIVE DISCIPLINARY PROCEDURES
 

1.          PRELIMINARY INVESTIGATION

A preliminary investigation should be carried out to determine whether or not the matter should continue further.

  • Seek advice from People and Culture, especially if serious misconduct is suspected. Interview the complainant.
  • Gather any evidence that is readily available.

 

2.          MAIN INVESTIGATION
Define the Allegation

  • Investigate the complaint / problem fully and promptly.
  • Gather specific examples. Check and photocopy relevant records.
  • Consider extent of contributing factors – organisation culture, the input of others to the situation, constraints, etc.
  • Check past practices for similar events or contradictory  behaviours. Document all actions taken to investigate.
  • Keep investigation as confidential as possible.
  • Interview the employee (see below).
  • If the employee's version of the facts differs from the complainant's, interview witnesses (internal and external if appropriate) and record their statements.

 

Advise Employee of Investigation Meeting in writing

  • Advise of time and place of meeting.
  • Advise employee of their right to take advice and have a representative and/or support person at the meeting.
  • Any meeting letter must be reviewed by People and Culture.
  • Advise employee of the complaint/problem in accordance with the employment agreement in sufficient detail for the employee to have a fair opportunity to consider their response.
  • Make sure the employee has been told what any investigation to date has revealed. It is not acceptable to disclose information bit by bit in order to trap the employee.
  • Explain the degree of seriousness of the matter including the possible range of outcomes if the complaint/allegation is upheld.

 

Meeting with the Employee

  • Describe the disciplinary process and possible outcomes.
  • Describe the complaint or performance problem and indicate how it would constitute a breach of the employment agreement or Otago Polytechnic Ltd policy.
  • In the case of performance issues, describe the actions that have already occurred to assist in improving performance.
  • Ask for and listen to the employee’s explanation.
  • Respond to questions from the employee. Don't withhold information in an effort to trap the employee into an admission or lie.
  • Decide if there is a need to adjourn to investigate further. Does the employee’s version need to  be verified?
  • If no need to investigate further, adjourn to review evidence and make decision (may only need to adjourn for 10 – 15 minutes, then reconvene to convey decision, more serious or complex cases could take longer).
  • Make sure you consider the full range of options for further action and consider which is appropriate in this case. Be consistent with any similar decisions.
  • Tell employee what the next steps are.
  • Have another Formal Leader/P&C representative present throughout the proceedings. Keep detailed records of what was said at the meeting.

 

Adjourn to continue Investigation

  • Gather more information, interview / re-interview witnesses if necessary. Advise employee of second meeting.
  • If the employee's version of the facts differs from the complainant's, interview witnesses (internal and external if appropriate) and record their statements

 

Second Meeting with Employee (if necessary)

  • Before or at the start of the meeting, give the employee any new information that has been obtained
  • Listen to what the employee has to say.
  • Tell the employee a decision will now be made which will be communicated at the next meeting. Say when that meeting will be. If the matter is relatively straight forward, make decision (may only need to adjourn for 10 – 15 minutes and then reconvene to convey decision).
  • Verify the employee’s explanation after the meeting, if necessary. Also, if anything new emerges from that process which could influence the decision, the employee must have the opportunity to respond before a decision is made.

 

3.          MAKING A DECISION
All evidence must be considered in decision making

 You must consider:              

  • The seriousness of the incident.
  • The frequency and nature of the problem: an emerging issue or a continuation pattern. The employee’s past work record and length of service.
  • The employee’s past disciplinary and performance record. What action has already been taken to resolve the problem. Any relevant training the employee has had.
  • The employee’s explanations during the meetings.
  • Whether the employee’s actions were in ignorance or deliberate. Any extenuating circumstances.
  • What action has been taken in the past with other employees– consistency.
  • Is the punishment reasonable in the circumstances?
  • What would a reasonable employer do? Any implications for other employees.
  • Is there reasonable evidence to justify the decision if it is appealed?

 

4.          CONVEY DECISION
             

  • Meet with the employee to convey and explain decision.
  • Ensure the employee is invited to have a support person/representative present if they wish. Have another Formal Leader/HR representative present throughout the  proceedings.
  • Hold the meeting in a place that provides privacy during the meeting and when the employee is leaving the meeting.
  • Do not get into a discussion with the employee as to whether or not the decision is right.

 

5.          OUTCOMES

A.              Oral Warning / Written Warning

  • Outline the specific problem.
  • Describe the employment agreement clause or Polytechnic policy that has been breached. Summarise the investigation and meetings that have taken place and the evidence that has been considered, including the employee’s explanations.
  • Describe any actions taken previously to resolve the problem.
  • Refer to any existing oral or written warning if this is a further offence during a warning period. Give the decision resulting from the investigation – oral warning or written warning.
  • Describe the action required of the employee to correct the problem.
  • Describe the performance standards to be achieved by the employee in the case of performance problems.
  • Describe what actions Otago Polytechnic Limited will take to assist in resolving the problem. Clarify the timeframe for improvement and how improvements will be assessed.
  • Explain the consequences of any further breaches or failure to meet the performance standards expected.
  • Tell the employee how long the warning is valid for.
  • Keep detailed records of what was said at the meeting.
  • Warnings MUST NOT be prepared in writing in advance and issued during the meeting with the employee.
  • Warning – After the meeting, record the oral warning in a file note and place on the employee’s personal file. Provide a copy to the employee and have them sign the file copy.
  • Written Warning – After the meeting follow up with a letter recording the written warning, setting out what performance standards the employee needs to achieve, the time frame for improvement and the potential consequences of any further disciplinary action within the period the warning is valid. Put a copy of the letter on the employee’s personal file.

 

B.              Dismissal with Notice

Except in cases of serious misconduct, dismissal will usually only occur following a history of oral and written warnings in the preceding 12-month period. No dismissal should be carried out without having first taken advice from the People and Culture Department.

  • Outline the specific problem.
  • Describe the employment agreement clause or Polytechnic policy that has been breached. Summarise the investigation and meetings that have taken place and the evidence that has been considered.
  • Describe any actions taken previously to resolve the problem. Refer to any previous related oral or written warnings.
  • Give the decision.
  • Dismissal with Notice – give notice of dismissal for misconduct not justifying summary dismissal, the notice period to be in accordance with the employment agreement.
  • Follow up by providing the employee with a letter setting out the breach of the employment agreement or policy, the evidence substantiating the breach, any action taken previously to resolve the problem, previous warnings, formal notice of dismissal and when effective. Advise of final pay arrangements.
  • UNDER NO CIRCUMSTANCES should the letter be prepared in advance and issued during the meeting with the employee

 

C.              Other Outcomes

  • Anything else?
  • 2nd Written warning instead of dismissal
  • Loss of potential increment
  • If appropriate, transfer to different position, location
  • Withdrawal of privileges (e.g. approval to attend conference, etc.)

 

D.              Summary Dismissal for Serious Misconduct

Serious misconduct usually arises from a breach of the serious misconduct rules of the Code of Conduct.

Formal Leaders must consult the People and Culture for advice and assistance before taking any action in a case of suspected serious misconduct.

 

Suspension

  • It may be necessary to remove the employee from the workplace during the investigation period, particularly if it is a case of suspected serious misconduct.
  • Suspension may be appropriate where the misconduct is such that it is not possible to carry out the investigation if the employee is present, or if there is the risk of further serious misconduct if the employee remains on site, or if the situation has become too sensitive.
  • Before making a decision to suspend the employee must be given the opportunity to take legal advice and to be represented at the suspension meeting
  • Before suspending an employee, inform the employee that it is proposed to suspend them on full pay and the reason the suspension appears to be necessary.
  • Investigate and meet with the employee as set out in the policy, remembering that if the allegations are serious they must be resolved as soon as possible.

 

If the allegation against the employee is subsequently found to be without substance, the employee is entitled to resume their position.

 

Placement on Other Temporary Duties

  • Place the employee on alternative temporary duties to remove them from the immediate workplace, in situations where it is deemed unnecessary to remove them from the Polytechnic completely.
  • Again this should not be done without prior consultation with the employee, them having the opportunity to take legal advice and to be represented at the meeting.
  • Ensure the employee has been clearly informed of the responsibilities and performance standards expected in the temporary duties, as well as of any other specific requirements during the assignment

 

Summary Dismissal

  • Consult the People and Culture Department for advice.
  • Ensure all action is consistent with the employee’s employment agreement.
  • Determine if it is necessary to suspend the employee or to move the employee temporarily while carrying out the investigation.
  • Inform the employee of the problem as outlined in the Progressive Disciplinary Procedures. Investigate the problem, meet with the employee, and make a decision as outlined in the Progressive Disciplinary Procedures.
  • Ensure the employee is aware of their right to representation.
  • Ensure the evidence for the final decision will stand up to scrutiny as the consequences of the decision are serious and substantial and may be appealed.
  • Convey the decision to the employee:
  • outline the specific problem
  • describe the employment agreement clause or Polytechnic policy that has been breached
  • summarise the investigation and meetings that have taken place and the evidence that has been considered, including the employee’s explanations
  • give notice of immediate dismissal
  • advise of final pay arrangements.
  • Follow up with a letter summarising the serious misconduct breach, the evidence substantiating the breach and notice of dismissal. Advise of final pay arrangements.
  • UNDER NO CIRCUMSTANCES should this letter be prepared in writing in advance and issued during the meeting with the employee.

 

References