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Appendices
Appendix 1: Checklist for using a performance management system and dealing with potential problems
The following checklist is a guide only and is indicative of the types of steps to follow in dealing with performance management issues. Individual cases may require further specialist advice from your employment or legal advisor. In particular, you need to ensure that you provide the number of warnings required under the employee’s employment agreement or a fair and reasonable number of warnings.
You can also seek further information from the Department of Labour on 0800 20 90 20.
This process can be used for existing employees or for employees recruited on an employment agreement that includes a probationary or trial period.
Problems are best dealt with in the context of a constructive performance management system that establishes expectations, reviews performance regularly, rewards success and deals with problems before they become too big (refer to Introduction).
Remember that the Employment Relations Act applies a “test of justification” in disciplinary situations and most dismissal situations. Whether a dismissal (or lesser disciplinary action, such as giving a final written warning) is justified, depends on whether your actions and decisions are what a fair and reasonable employer would have done in the circumstances and are consistent with your treatment of other employees in similar circumstances.
| STEPS FOR USING A PERFORMANCE MANAGEMENT SYSTEM AND DEALING WITH POTENTIAL PROBLEMS |
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| Check the employment agreement and the problem-solving process in the agreement. For example, be prepared to follow carefully any processes for escalating from verbal to written warnings. |
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| Review the job description, agreed performance indicators, and any statements of company standards. (These are referred to below as the “performance expectations”.) |
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| Either alone or with the person responsible for the employee’s supervision, identify areas where the employee is exceeding, meeting or failing to meet performance expectations. |
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| Confirm that scheduled training and induction has taken place. |
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Arrange to meet with the employee, saying you will be discussing his or her performance, and offering the opportunity to have a support person or representative present.
If the issue is not urgent, this discussion might take place within the regular performance review meeting that you hold, say, every quarter. Record that the meeting has been arranged. |
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| Discuss the employee’s performance, clearly identifying any areas of concern against performance expectations and listening to the employee’s explanations. |
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| Agree on the performance standards to be reached in the future, any training support required and the date of the next performance review. Record the agreement on the employee’s file, giving the employee a copy of what you have agreed. |
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| Do not let the date set for the performance review slip. Ensure you have tracked progress towards reaching the expected performance, and be prepared to discuss this with the employee on the set day. |
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| Arrange to meet and review progress. If you have any performance concerns that may require a warning to be issued, advise the employee that the meeting may result in disciplinary action. At the meeting, agree which performance expectations have been met and any areas that still require improvement. Identify the significance of any areas that are still outstanding. Record the outcome. |
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| Repeat steps 7 to 9 for outstanding areas, until satisfactory performance levels are reached. When this is achieved, advise the employee and record this on the file. Schedule the ongoing performance management that would normally occur within your organisation.
Generally, your process will revert to regular performance management processes at this stage. Where the agreed improvement is not reached, the process can be continued as follows. At any stage, if performance reaches the agreed level, you can terminate the procedure in this checklist and revert to standard performance management.
If you continue to have concerns, the following actions are required:
arrange a meeting, advising the employee that you will be discussing their continuing unsatisfactory performance and that disciplinary action or dismissal is a potential outcome.
advise the employee of their right to have a support person present. |
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| If performance is not improving, despite regular discussion and the implementation of an improvement regime, advise the employee of the consequences of a continuation of their current performance.
Formally warn the employee that further lack of improved performance may result in dismissal and set the date for the next review. Record the warning and next review date in writing. |
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| If performance expectations have not been achieved by the review date, consider the magnitude of the underperformance against the performance expectations, the opportunities given for improvement, the progress made and the general levels of performance in the organisation. Also review the employment agreement or company policies to confirm the number of opportunities (both oral and written warnings) for improvement the employee must be given. Consider whether the performance gap is significant.
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| If the performance gap appears significant enough to consider dismissal and you believe the employee has been given sufficient opportunity to improve, review the employment agreement and the notice provisions. Check also for any redeployment obligations in the agreement and consider any redeployment opportunities you may have for the employee. |
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| At the meeting, outline your continuing issues and listen to and consider any response. If you believe the response is unsatisfactory, outline your reasons to the employee. |
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| If redeployment is possible, raise this with the employee and discuss and agree whether this will happen. If redeployment is not possible, give notice of termination in terms no less favourable than under the employment agreement. |
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| Confirm the outcome in writing to the employee. |
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Appendix 2: Checklist for managing problems with behaviour or relationships
The following checklist is a guide only and is indicative of the types of steps to follow in dealing with problems with behaviour or relationships. Individual cases may require further specialist advice from your employment or legal advisor. In particular, you need to ensure that you provide the number of warnings required under the employee’s employment agreement or a fair and reasonable number of warnings.
You can also seek further information from the Department of Labour on 0800 20 90 20.
This process is applicable to issues such as absenteeism, lateness or employees behaving inappropriately to a colleague or customer. All these issues are described as “behaviour” in this checklist.
Remember that the Employment Relations Act focuses on good faith and the expectation that employers and employees will work together to maintain effective relationships.
In most cases, problems are sorted out satisfactorily. Where this does not occur, the Act applies a “test of justification”. Whether any action is justified depends on whether your actions and decisions are what a fair and reasonable employer would have done in the circumstances and how you have dealt with similar issues in the past.
| STEPS FOR MANAGING PROBLEMS WITH BEHAVIOUR OR RELATIONSHIPS |
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| Check the employment agreement and the problem-solving process in the agreement. For example, be prepared to follow carefully any processes for escalating from verbal to written warnings. |
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| Review any relevant company codes of conduct or other statements of expectations. (These are referred to below as the “known standards”.) |
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| Either alone or with the person responsible for the employee’s supervision, identify the specific problem. Decide whether the behaviour has a negative effect on the company and breaches known standards. |
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| Arrange to meet with the employee, saying you will be discussing his or her behaviour, advising that this may result in disciplinary action and offering the opportunity to have a support person or representative present. Record that the meeting has been arranged. |
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| At the meeting, discuss the employee’s behaviour, clearly identifying your areas of concern. Listen to the employee’s explanations. |
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| If you agree that your concerns are not founded, you should note this in the employee’s file. You should not raise those concerns again in any future disciplinary proceedings.
If you decide that your concerns are founded, document the change in behaviour you expect, including the time frame you will allow, and advise the employee of the consequences of further similar behaviour (including that disciplinary action may follow). Note this on the employee’s file.
If a warning is considered appropriate, give the employee a copy of the warning (unless it is a verbal warning only). |
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| Follow any requirement in the employment agreement that requires removing warnings from the employee’s file if a problem does not recur or at a set expiry date for the warnings. If you have removed warnings from the file, do not rely on those past issues in any future disciplinary proceedings.
Generally, your process will revert to regular performance management processes at this stage. Where behaviour does not reach a satisfactory standard, the process can be continued as follows. At any stage, if behaviour reaches the agreed standard, you can terminate the procedure in this checklist and revert to standard performance management. |
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| If behaviour issues continue, assess the significance of the behaviour against known standards. Also review the employment agreement or company policies to confirm the number of warnings the employee must be given. |
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| If you have not yet provided the employee with warnings, or the behaviour does not appear significant enough to warrant dismissal, follow these steps:
Arrange to meet with the employee.
Inform them that you will be discussing the continuing behaviour, advising that this may result in disciplinary action and offering the opportunity to have a support person or representative present.
Record that the meeting has been arranged. |
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| At the meeting, discuss the employee’s behaviour, clearly identifying your areas of concern. Listen to the employee’s explanations. If you are not satisfied with the employee’s explanations, document the change in behaviour you expect, including the time frame you will allow, and advise the employee of the consequences of further similar behaviour (including that dismissal may follow). |
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| If you have followed your process regarding warnings, and the continuing behaviour appears significant enough to consider dismissal, review the employment agreement and the notice provisions. Dismissal should only be considered where it would be considered a reasonable response to the behaviour by a fair and reasonable employer in the circumstances. |
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| Arrange a meeting, advising the employee that you wish to discuss the continuing unsatisfactory behaviour. Advise that dismissal is possible. Advise the employee of their right to have a support person present. |
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| Outline your continuing issues, and listen to and consider any response. Be prepared to take a break to consider the response. If you believe the response is unsatisfactory, outline your reasons to the employee. If you cannot reach agreement, give notice of termination in terms no less favourable than the employment agreement. |
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| Confirm the outcome in writing to the employee. |
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Appendix 3: Checklist for investigating serious misconduct
The following checklist is a guide only and is indicative of the types of steps to follow in dealing with situations that may constitute serious misconduct. Individual cases may require further specialist advice from your employment or legal advisor.
You can also seek further information from the Department of Labour on 0800 20 90 20.
Serious misconduct is behaviour within the workplace that creates an immediate need to review the employment relationship. This could include theft, or physically or mentally abusive behaviour to colleagues or customers.
In such circumstances, your investigation must be thorough, well documented and undertaken promptly. This is an area where you may consider suspending the employee (refer to Investigating and dealing with misconduct) while that investigation takes place.
If the alleged misconduct is such that you may have to involve an outside party, such as the police or a professional association, you should seek advice before you get started.
Remember that the Employment Relations Act applies a “test of justification” in most situations. Whether behaviour is considered serious enough to warrant immediate dismissal, without an opportunity for the employee to change behaviour, depends on whether your actions and decisions are what a fair and reasonable employer would have done in the circumstances and how you dealt with similar situations in the past. This does not mean you need to deal with behaviour in the same way as in the past, but you need to have set clear expectations of what behaviour is acceptable and what is not.
| STEPS FOR INVESTIGATING SERIOUS MISCONDUCT |
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| Check the employment agreement and the problem-solving process in the agreement. In particular, be prepared to follow carefully any processes for dealing with serious misconduct. |
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| Review any relevant company codes of conduct or other statements of expectations, including descriptions of what constitutes serious misconduct at your workplace. |
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| Either alone or with the person responsible for the employee’s supervision, investigate the alleged incident thoroughly. This will generally require that you gather relevant facts and talk to any witnesses, rather than relying on assumptions. |
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| Confirm whether, on the basis of the information gathered, the incident expressly constitutes serious misconduct in your workplace or is behaviour that would generally not be tolerated in any workplace. |
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| Consider whether the allegation and/or the evidence is serious enough that the employee should be suspended during your investigation. Suspension is a serious step, and you are strongly advised to get advice from a legal advisor or an employers’ association before deciding on this step. (refer to Suspending an employee) |
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| Arrange to meet with the employee, saying you will be discussing an issue of potential serious misconduct that could result in dismissal or other disciplinary action and making it clear that they have the right to have a support person or representative present. Record that the meeting has been arranged. |
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| At the meeting, outline the evidence of misconduct you have gathered. You must make known to the employee any information that you rely on as evidence. If you don’t want to tell the employee about a piece of information, you can’t use that information in making your decision. Listen to the employee’s explanations. If the employee requires time to gather information to respond, then give adequate time – but a clear time should be set for a further meeting. |
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| If explanations are given, investigate them immediately and thoroughly and record the outcome of the investigation. Reconsider the seriousness of the behaviour given all the material you have now accumulated, and assess whether the misconduct was at a level that makes it impossible to continue the employment. |
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| Arrange a further meeting, again making it clear that the meeting could result in dismissal or other disciplinary action and that the employee has a right to a representative or support person. If the employee was suspended, consider whether the suspension should now be lifted. |
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If the explanation shows:
- that misconduct has not occurred, then advise the employee of this and remove all reference of the allegation from their file and do not rely on the allegations on any future occasion
- that any misconduct is not at a level or of a nature to warrant immediate dismissal, then a warning should be issued and recorded on the employee’s file.
Your process can revert to regular performance management processes at this stage. Where you are satisfied that serious misconduct has occurred, the process can be continued as follows. |
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| If no adequate explanation is given, or your investigation leads you to believe that serious misconduct occurred despite the explanation, you should inform the employee of this. |
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| If you are contemplating dismissal, advise the employee of this and invite the employee to make any final representations on your conclusions, and consider and respond to any request for a lesser action. If you agree to a lesser disciplinary action, advise the employee and record this on their file. |
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| If you decide dismissal is appropriate, inform the employee that they are being dismissed and ensure that dismissal occurs on terms no less favourable than under the employment agreement. Confirm the outcome in writing to the employee. |
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Appendix 4: Checklist for restructuring and redundancy
The following checklist is a guide only and outlines the actions an employer would generally be expected to take when changing the workplace in a way that affects employees.
Individual cases are likely to require further specialist advice from your employment or legal advisor, particularly in complex situations.
You can also seek further information from the Department of Labour on 0800 20 90 20.
There are no general rights to redundancy compensation or rules about selecting employees for redundancy in legislation in New Zealand. However, requirements apply for consultation with most employees over changes in the workplace that affect them.
Additionally, employment agreements must outline how the employer will deal with employees on the sale of all or part of a business, and for some specified groups of employees undertaking particular work, there is a requirement that those employees transfer to the new employer when work is contracted out.
Make sure that you follow any requirements in the relevant employment agreement (i.e. for consultation and/or payment in the event of redundancy). It is possible that requirements in the employment agreement may override the suggestions in the checklist below.
| STEPS FOR RESTRUCTURING AND REDUNDANCY |
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| Before you begin considering a restructuring, review the employment agreements and job descriptions of all those involved. |
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| If a consultation process is required in the employment agreement, begin implementing the process as soon as possible. Note also that any requirements of the employment agreement may override other steps in this checklist. |
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| Advise any employees whose current work may change or cease that you are considering changing the way work is organised. |
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| Focus on the work, not the individual, when you start considering your future organisational needs.
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| Seek input from employees on possible changes. Make sure that employees have enough information (for example, about the problems you perceive and your goals) to make a meaningful contribution. |
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| Develop a proposed structure based on your future organisational needs and the submissions received. |
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| Consider whether you wish to offer voluntary redundancy and the criteria under which this will be offered. Selection for voluntary redundancy must still follow a fair process, including informing employees of the criteria. |
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| If you do not have specific redundancy provisions and wish to propose some, consider the best stage to raise this with employees. |
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| Distribute the proposed structure to employees, indicating to each employee whether their job remains unchanged, will change or will no longer exist. Identify any new jobs and the process for employees to get access to these jobs. |
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| Confirm either new appointments (i.e. redeployments) or redundancies individually to employees in writing. Provide notice of redundancy in terms of the termination and redundancy clauses in the employment agreement. |
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| If job changes are significant, renegotiate employment agreements to reflect the new responsibilities. |
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| Identify any training needs to ensure employees can perform changed duties. |
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| Consider providing time for job search and support to employees leaving the company. |
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| Develop and provide comprehensive references for employees leaving the company. |
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Appendix 5: Sample problem-solving procedure to include in the employment agreement with your employee
The written employment agreement between an employer and an employee must include a problem-solving procedure, which, if the parties agree, may be similar to this sample procedure:
If our employment relationship is to be as successful as possible, it is important that we deal effectively with any problems that may arise.
This procedure sets out information on how either of us can raise problems and how we will work them through.
1. What is an employment relationship problem?
A “problem” can be anything that harms or may harm our employment relationship, other than problems relating to negotiating the terms and conditions of employment.
2. Clarify the problem
If either of us feels that there may be a problem in our employment relationship, the first step is to check the facts and make sure there really is a problem and not simply a misunderstanding.
You may want to discuss the situation with someone else to clarify whether a problem exists. In doing so, be sure to respect the privacy of other employees and managers, and to protect confidential information belonging to the employer.
For example, you could seek information from:
- friends and family
- the Department of Labour on 0800 20 90 20 or at www.ers.dol.govt.nz
- pamphlets/fact sheets from the Department of Labour
- your union, a lawyer, a community law centre or an employment relations consultant.
3. Discuss the problem
If either of us believes that there is a problem, it should be raised as soon as possible.
This can be done in writing or orally. Provided you feel comfortable doing so, you should ordinarily raise the problem with your direct manager. Otherwise, the problem can be raised with another appropriate manager.
A meeting will usually then be arranged where the problem can be discussed. You should feel free to bring a support person with you to the meeting if you wish.
We will then try to establish the facts of the problem and discuss possible solutions.
4. The next steps
If we are not able to resolve the problem by talking to each other, we each have a number of options:
- We can contact the Department of Labour, which can provide information and/or refer us to mediation.
- We can take part in mediation provided by the Department of Labour (or we can agree to get our own mediator). Mediation is confidential.
- If we reach agreement, a mediator provided by the Department of Labour can sign the agreed settlement, which will be binding on us.
- We can both agree to have the mediator provided by the Department of Labour decide our problem for us, in which case that decision will be binding on us.
- If mediation does not resolve the problem, in most situations either of us can refer the problem to the Employment Relations Authority for investigation. However, if you have been given notice of dismissal during a trial period you cannot take a personal grievance based on unjustified dismissal to the Authority, but you may take a personal grievance on other grounds such as discrimination or harassment.
- The Authority can direct us to mediation, or can investigate the problem and issue a determination.
- If either of us is not happy with the Authority’s determination, we can refer the problem to the Employment Court. (The Court may also tell us to go back and have more mediation.)
- In limited cases, there is a right to appeal a decision of the Employment Court to the Court of Appeal and the Supreme Court.
5. Personal grievances
If the problem is a personal grievance, then you must raise it within 90 days of when the incidents that give rise to the grievance occur or come to your attention. A personal grievance can only be raised outside this time frame with the agreement of the employer, or in exceptional circumstances.
The content of this document covers common problems. It will not answer every question and should not be used as a substitute for legislation or legal advice.
The Department of Labour takes no responsibility for the results of any actions taken on the basis of information on this document, or for any errors or omissions
For further information on employment relations, visit www.dol.govt.nz or phone 0800 20 90 20.
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This page was last updated on:
31-Mar-2010
and is current.
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