Be Disciplined About Disciplinary and Performance Management Issues

Grevis Beard
October 1, 2009

Be Disciplined About Disciplinary and Performance Management Issues

Performance Management vs. Disciplinary Action – Different Approaches to Different Problems

If an employee is “behaving badly” in the way they are relating to their colleagues and their performance is suffering, is the problem bullying, or, a failure by the employer to accommodate their illness? Should the employee be disciplined, counselled, investigated or put on a performance plan? These are not straightforward questions, even for the seasoned Human Resources manager.

In a number of recent cases at Worklogic Consulting, we have seen evidence of long standing confusion by some supervisors and managers about the difference between poor performance management and disciplinary action, and confusion about when these responses are appropriate to initiate in the workplace. While the difference between poor performance and conduct requiring disciplinary action may seem to be basic, in a complex workplace situation they can be difficult to apply with clarity.

Performance vs. Discipline – Know the Difference

There are two clear categories of employee conduct which warrant a response from the employer: performance-related conduct, and inappropriate conduct or misconduct.
If an employee is not meeting the employer’s expectations for the quality or quantity of their work, the problem is poor performance. In response the employer will attempt to improve the performance of the individual in line with the expectations of the organisation.

Conduct deserving of disciplinary action is usually called “misconduct” and takes the form of a breach or breaches of any of the organisation’s employment policies or rules. The breach might be anything from the email policy to occupational health and safety rules. Breaches vary in significance. Gross misconduct usually involves criminal or fraudulent behaviour, or serious dishonesty.

Make the Solution Fit the Problem

Performance Management

The management of an employee’s poor performance can be challenging for managers. Managing poor performance often involves difficult and uncomfortable communication, as a manager attempts to identify the flaws and inadequacies of the employee’s performance, to understand the reasons for the poor performance, and to ensure the employee understands the serious negative consequences of their failure to perform, while at the same time trying to provide encouragement and feedback designed to improve that employee’s performance.

In commencing a poor performance process, managers need to ensure that:

  • There is a clear position description for the employee’s role;
  • The employer’s requirements for the improvement in the employee’s performance, including a reasonable timeframe for the improvement, are clear and have been explained to the employee (ideally these requirements are measurable, to reduce the likelihood of a later disagreement); and
  • The employee has the resources and supports that they reasonably require in order to improve to the required level.

Some of the options available to managers include: immediate verbal feedback each time poor performance is observed; training and development programs; an employee assistance program (if the root of the problem is the employee’s personal issues); counselling or mentoring that is focused on strategies for improvement and goal-setting; and formal regular meetings with the manager during the improvement period.

If the employee’s performance fails to improve despite the employer’s efforts, and the employer is considering terminating the employee’s performance or otherwise subjecting them to disciplinary action for failing to perform, legal advice should be sought. The ramifications of getting this wrong could include legal action.

Disciplinary Action

By comparison, misconduct is generally associated with behaviour that is sufficiently serious to cause damage to other employees or to the business, and involves a breach of employment policies or laws, and as such, requires an immediate response to stop the behaviour and re-affirm the employer’s requirements of the employees. The employer’s response to misconduct is a disciplinary one. It is more formal, less ‘tailored’ to the individual employee’s circumstances, and usually involves an element of fact-finding and a decision on the appropriate penalty.

Set Up Your Managers to Succeed

In our experience at Worklogic Consulting, many poor performance and discipline matters are made much worse – and are sometimes caused by – a lack of the knowledge, skills and supports which managers require to manage staff properly. Often, we are called in because the manager has been avoiding a problem with employee conduct for months, even years. It is vital to give managers support and training so that they do not avoid difficult conversations with employees.

Try this test:

  • Have your managers been trained in how to have difficult conversations?
  • Do they understand the difference between disciplinary action in response to misconduct, and performance management in response to poor performance?
  • Do they know what to do if a member of their staff is exhibiting both poor performance and also breaching company policies?
  • Is the active management of performance of staff part of your managers’ KPIs?
  • Do managers keep notes of all conversations they have with employees about performance and discipline?
  • Do managers come to HR when they are struggling to manage an employee’s destructive behaviours?
  • Are the organisation’s performance development process and the disciplinary process documented, up to date, and easily available to staff?

Employers must ensure that their managers are well prepared for poor performance and disciplinary discussions and decisions when they are required. The manager will then be confident about the process, ensure that the necessary evidence of the poor performance or misconduct has been gathered, and thus be well placed to confidently handle conversations with an employee. By adopting a firm but respectful and reasonable approach, the manager will maximise the likelihood that the employee’s performance will improve or the misconduct will cease, and hopefully avoid a bullying complaint or grievance being made by the employee about the process.

It is also important for the manager to reflect on the potential consequences of failing to effectively manage an employee’s poor performance, or of allowing the misconduct to continue unchecked. Such risks could include staff making complaints against the poor performing employee, poor staff morale, industrial consequences, legal risk including OHS dangers, and/or a culture of apathy and mediocrity developing. It will leave all staff with the impression that poor performers are tolerated, and breaches of policy will be ignored.

Manage the Risks

There are many factors which discourage managers from responding appropriately to misconduct and poor performance. Two of the most common are the fear of conflict, and embarrassment at criticising another person to their face.

Another reason why many managers fear these engagements with their staff is a fear that the employee will respond negatively or even aggressively. Unfortunately it is becoming increasingly common, in the context of poor performance management and disciplinary procedures, for the employee to lodge a complaint that their manager is bullying them. Claims of bullying and harassment in the course of disciplinary procedures have been described by lawyers as “almost the rule rather than the exception these days”. Why is this so?

According to Worksafe Victoria, examples of indirect bullying include:

  • Unjustified criticism or complaints;
  • Deliberately denying access to information or other resources;
  • Withholding information that is vital for effective work performance;
  • Setting tasks that are unreasonably above or below a worker’s ability;
  • Setting timelines that are very difficult to achieve;
  • Excessive scrutiny at work.

It is not difficult to see how an attempt by a manager to discuss an employee’s poor performance may be perceived as unjustified criticism or excessive scrutiny, and a performance improvement plan being viewed by the employee as setting tasks that are unreasonable or very difficult to achieve. Whether or not the employee’s perception is valid will depend on a number of factors, including the reasonableness of the feedback and its delivery.

Does this mean managers should avoid managing poor performers? No. According to Worksafe, “reasonable management actions carried out in a fair way are not bullying”.

This may include:

  • Setting performance goals, standards and deadlines;
  • Informing a worker about unsatisfactory work performance;
  • Constructive feedback; and
  • The performance management process.

If managers ensure that they behave fairly and consistently, communicate clearly, provide constructive feedback, resource workers appropriately and set reasonable tasks and deadlines, they can feel confident that a bullying complaint against them should not succeed, even if their feedback is bad or they are subjecting the employee to disciplinary action.

Conclusion

Common kneejerk reactions by employees to performance management or disciplinary processes can be fight or flight: either meeting the allegations with a counter-claim of bullying, or outright denial that there is any potential problem to address. Managers need to be prepared, so that they do not deal with sensitive situations in a hasty, unorganised way.

Ensuring that your performance managers are well trained and supported to undertake performance management and to respond to misconduct will reduce the likelihood that these processes will go pear-shaped, and result in bullying complaints. Consider whether the requisite policies, processes, skills and supports are in place at your organisation.

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