Performance and Misconduct Policy

Overview

[The Company] is committed to the highest level of performance in all areas. As such, it is committed to investigating and managing staff performance and disciplinary matters in a timely and effective manner ensuring the process is fair and consistent.

As such, [the Company] endeavours to provide employees and managers with guidance, support and advice on the processes which are to be followed when dealing with situations of poor performance, unsatisfactory behaviour and misconduct.

This Policy is designed to ensure the effective, fair and reasonable treatment of all employees of [the Company] where performance or conduct (including misconduct) issues arise, by giving employees and managers an understanding of how performance, behavioural and misconduct issues should generally be managed and addressed.

However, nothing in this policy requires [the Company] to manage performance, behavioural or misconduct issues in a particular way and [the Company] reserves the right to adopt a different process to that set out in this policy.

Who does it affect/who needs to know?

This policy applies to all employees of [the Company], irrespective of status, classification, length of service or work location.

Principles and Objectives of the Policy

The underlying principles that govern this Policy are:

  • fairness and equity—to the employee, to fellow employees and to [the Company].
  • personal responsibility—while [the Company] endeavours to assist all its employees achieve their full potential and overcome performance and conduct issues, ultimately, conduct and performance are the responsibility of each employee.

The objective of this Policy is to:

  • encourage and improve good work practices, performance and individual conduct;
  • correct and/or improve the standard of performance or conduct of an employee and to ensure such matters are investigated properly, considered reasonably and dealt with promptly, fairly and consistently;
  • ensure employees have an opportunity to reply to any accusations made against them by applying the principles of procedural fairness;
  • provide employees with the opportunity  to correct unacceptable performance  or conduct (other than in situations where summary dismissal is appropriate); and
  • ensure that employees understand that failure to improve performance or conduct can result in disciplinary measures, including termination of employment.

Some key definitions

A performance or conduct issue is one which reduces [the Company]’s confidence in an employee’s ability to perform their role to the required standard, whether by a deliberate act or by omission.

Performance Issues are those in which work performance is not of an appropriate standard and needs immediate improvement. It covers circumstances where:

  • an employee is not performing the duties of their position and/or not performing them to the required standard; and/or
  • an employee is displaying disruptive or negative behaviour in their day-to-day job which impacts their performance.

An example of a performance issue is [insert example of poor performance relevant to Company, for example, the failure to appropriately enter customer details]. It will include conduct that is related to attitude or behaviour around work that is unsatisfactory and of an ongoing nature, such as consistently failing to reach targets or to complete tasks in a timely manner; or ongoing tardiness, including unauthorised lateness.

Conduct issues are those in which poor behaviour or conduct has occurred in or affects the workplace, such as where an employee harasses or bullies a colleague.

Misconduct is a more serious form of conduct issue and occurs when there is a breach of company policy, procedure, rules or values. Misconduct varies in seriousness, depending on the circumstances of the breach. Examples of misconduct (which in serious cases may be serious misconduct, see below) may include (but are not limited to):

  • Unauthorised absence from work or absence from the work area without permission;
  • lateness or absenteeism;
  • Failing to comply with company quality procedures;
  • Inappropriate behaviour which is not in line with [the Company]’s Code of Conduct;
  • Offensive language or verbal abuse;
  • Neglect of duty;
  • Mismanagement; or
  • Behaviour towards other employees, customers, suppliers or visitors which is considered coercive, threatening, intimidating, belittling and/or demeaning.

Serious misconduct means behaviour by an employee that is inconsistent with the continuation of the contract of employment and thus inconsistent with [the Company] Code of Conduct, values, policies and procedures. It includes behaviour done with a wilful, deliberate, premeditated or intentional purpose or with indifference to the consequences of one’s acts. Serious misconduct can involve one-off or multiple incidents.

Examples of serious misconduct include, but are not limited to:

  • Any criminal offence that impacts the employment relationship, including but not limited to, fraud, theft or assault;
  • Disclosing or improper use of confidential information;
  • Deliberately damaging company or customer’s property;
  • Fighting at work and other aggressive behaviour;
  • Serious incidents of bullying, discrimination or harassment (see [the Company]’s Anti-Harassment, Bullying and Discrimination Policies);
  • Dishonesty;
  • Serious breaches of company policy or procedure;
  • Misuse of company vehicles;
  • Wilful refusal to carry out a lawful and reasonable management directive;
  • Serious breach of workplace health and safety law, policy or procedures;
  • Being under the influence of alcohol and/or other non-prescription drugs while working;
  • Using alcohol (except at approved work functions where alcohol is expressly permitted) or other non-prescription drugs at work; or
  • Conduct that causes serious and imminent risk to:
    • the reputation, viability or profitability of the company’s business; or
    • the health or safety of a person.

Summary Dismissal means dismissal without notice for serious misconduct.

General Principles

[The Company]’s disciplinary process may vary as each case is managed on its individual merits and circumstances.

The following general rules apply to managing poor performance and behavioural issues:

  • Issues will be addressed fairly, consistently and impartially;
  • All formal disciplinary issues will be fully and fairly investigated, where appropriate, in a timely manner prior to any action being taken;
  • Employees will be entitled to a support person for formal disciplinary meetings;
  • Procedural fairness will be provided to employees. This includes:
    • the opportunity to hear concerns regarding performance or conduct; and
    • the opportunity and sufficient notice to present his/her response to allegations, decisions made and penalties proposed;
  • Performance and/or conduct issues will be addressed on an individual basis, with any disciplinary outcomes applied on a case-by-case basis, depending on the circumstances and seriousness of the issue;
  • If a formal investigation is conducted into performance and/or conduct issues, findings will be based on the available facts and evidence; and
  • Confidentiality will be maintained to the extent possible.

Generally, all performance and conduct management communications and procedures should aim to ensure that:

  • performance and conduct expectations are set, acknowledged and reviewed;
  • performance and conduct shortfalls are identified against performance and conduct expectations and addressed as early as possible;
  • underlying causes of poor performance or conduct are investigated;
  • areas of concern and specific examples of poor performance and conduct are identified;
  • records of the performance or conduct management are kept; and
  • there is a reasonable amount of time for the employee to improve performance or (in appropriate cases) conduct.

Disciplinary action may be taken in response to any:

  • Unsatisfactory performance;
  • Unacceptable conduct; or
  • Wilful or serious misconduct.

What is a support person?

A support person can be a colleague, friend, union representative or other individual that an employee can bring along to a formal disciplinary meeting. Their role is to offer support and advice, but not to act as an advocate or give evidence or an account of events on behalf of the employee, to answer for the employee, or try to take control of the meeting. They should not disrupt or interfere with the disciplinary meeting process. A support person who refuses to conform to these directions may be asked to leave the meeting.

It is the employee’s responsibility to ensure that their support person understands their role and is available at the nominated meeting time.

A support person should not be a witness (actual or potential) in the investigation process.

[The Company] is entitled to have a company representative or witness present at all meetings, but such a person is not a “support person” for either the employee or the company, and the restrictions on the role of a support person do not apply to that person.

Investigation

Depending on the circumstances, it may be necessary to conduct an investigation into incidents and/or allegations. This may be as simple as a manager informally asking employees what happened, or may be more complex and formal, involve collecting relevant data, interviewing the relevant employee, relevant witnesses, such as the employee’s co-workers or supervisors, or even customers and suppliers with whom the employee has had contact.

[The Company] will endeavour to investigate all allegations of unsatisfactory performance, unacceptable conduct, or wilful or serious misconduct by an employee fairly and promptly.

An employee may be suspended from duty on ordinary pay pending completion of a investigation. In such circumstances, the employee will be informed in writing of the conditions of the suspension at the time of the suspension.

[The Company] expects employees to assist in any investigation. However, employees should understand that all investigations, whether informal or formal, are confidential and should not be discussed with other persons, in particular with other employees.

Disciplinary Action

The disciplinary action taken will vary from case to case, depending upon all of the circumstances, including a consideration of whether the employee has received any prior verbal or written warnings in relation to their performance or conduct.

Regardless of whatever disciplinary action is imposed, any further unsatisfactory performance, unacceptable conduct or misconduct of any kind can result in the dismissal of the employee.

Informal Discipline

Examples of informal disciplinary action which may be taken by [the Company] include, but are not limited to, the following:

  • redirection, retraining;
  • reorganisation/redeployment; and
  • informal counselling.

Informal counselling is generally used for minor breaches or performance concerns, with the aim of:

  • bringing the breach or performance concern to the attention of the employee; and
  • informing the employee of the expected standards.

A formal disciplinary process will be followed where informal counselling does not resolve the issue or where the issue is more serious.

Informal disciplinary action is not appropriate where the employee’s conduct amounts to wilful or serious misconduct.

Formal Discipline

Examples of formal disciplinary action which may be taken by [the Company] include, but are not limited to, the following:

  • formal counselling;
  • verbal warning;
  • written warnings (including a final written warning);
  • dismissal, including summary dismissal in circumstances of serious or wilful misconduct.

Dismissal from employment

If the decision is made to terminate the employee’s contract of employment with [the Company], the employee will be given:

  • written notice of the day of the termination of his/her employment or payment in lieu of notice, except where the termination is due to serious misconduct (where summary dismissal applies);
  • payment of all accrued entitlements;
  • payment of any outstanding entitlements;
  • a Separation Certificate; and
  • a Statement of Service, if one is requested.

On termination, the employee must immediately return all [the Company]’s property in the employee’s possession or control to [the Company].

General rules for managing performance or conduct issues

The following general rules apply to managing poor performance and behavioural issues:

  • where possible, employees will be given at least 24 hours notice of all meetings during which performance or behavioural issues are to be discussed;
  • employees are entitled to have a support person present at all meetings related to their performance/behaviour;
  • [the Company] is entitled to have a company representative/witness present at all meetings; and
  • notes will be taken by the [the Company] and will be kept on the employee’s file.

Where performance or behavioural issues (excluding serious misconduct) are identified, the following five step process should usually be adopted:

  • Step One — Informal meeting;
  • Step Two — Verbal warning;
  • Step Three — First Written Warning;
  • Step Four — Final Written Warning; and
  • Step Five — Disciplinary Action.

At any stage of the process, if [the Company] is satisfied that any form of disciplinary action is required, [the Company] reserves the right to take that action, irrespective of what stage the process has reached.

[The Company] is not obliged to follow the five step process in all circumstances and may elect to modify the process and suggested times (and modify what steps are taken) at its discretion.

The Process for Performance Issues

When a minor issue arises with an employee’s performance, [the Company] will endeavour to address it as soon as possible, initially on an informal basis, by the employee’s supervisor speaking to the employee. [The Company] recognises that it is unfair to “save up” incidents of poor performance to be used against an employee at a later date, so these informal discussions will take place at the time of, or soon after, an incident of poor performance. If the issue becomes repetitive, or is serious enough, the following process will generally be followed.

Step One — An Informal meeting will be arranged by [insert relevant person, for example, the employee’s direct Manager] where a performance issue has been identified by [insert relevant person, for example the Manager].

At the meeting [insert relevant person, for example the Manager] should:

  • inform the employee of the alleged poor performance (giving specific examples of the poor performance);
  • give the employee an opportunity to respond to the allegations;
  • consider and discuss with the employee whether additional training or support may assist the employee improve their performance;
  • detail the improvements to performance that need to take place;
  • notify the employee of the required timeframe in which improvement must be shown before the matter may progress to the next step (usually [insert realistic time to show improvement that is relevant for the Company, for example, one month], but this may vary depending on the circumstances); and
  • explain to the employee that their performance will be monitored over the timeframe in which they are required to improve.

Following the meeting [the Company] should take steps to ensure that any additional training or support needs that were identified are met, and should actively monitor the employee’s performance.

Step Two — A Verbal warning will be provided to an employee if the employee’s poor performance has not improved within the time set under Step One. [Insert relevant person, for example The Manager] should arrange a formal meeting with the employee to further discuss the situation and provide the employee with a verbal warning.

At the meeting [insert relevant person, for example the Manager] should:

  • summarise the matters that were discussed in the Step One informal meeting;
  • inform the employee that [the Company] is not of the view that the employee’s performance has improved sufficiently since the first meeting by giving specific examples;
  • give the employee an opportunity to respond to the allegations;
  • consider and discuss with the employee whether additional training or support may assist the employee improve their performance;
  • detail the improvements to performance that need to take place;
  • notify the employee of the required timeframe in which improvement must be shown before the matter may progress to the next step (usually [insert realistic time to show improvement relevant to the Company, for example, one month, three months], but this may vary depending on the circumstances);
  • explain to the employee that they are being given a verbal warning in relation to their performance; and
  • explain to the employee that their performance will be monitored over the timeframe in which they are required to improve.

Following the meeting [the Company] should take steps to ensure that any additional training or support needs that were identified are met, and should actively monitor the employee’s performance/behaviour.

Step Three — A First Written Warning will be provided to the employee if the employee’s poor performance has not improved within the time set under Step Two. [The Company] should arrange a formal meeting with the employee to further discuss the situation and provide the employee with a first written warning.

At the meeting [insert relevant person, for example the Manager] should:

  • summarise the matters that were discussed in the Step One and Two informal and formal meetings;
  • inform the employee that [the Company] is not of the view that the employee’s performance has improved sufficiently since the first meeting by giving specific examples;
  • give the employee an opportunity to respond to the allegations;
  • consider and discuss with the employee whether additional training or support may assist the employee improve their performance;
  • detail the improvements to performance that need to take place;
  • notify the employee of the required timeframe in which improvement must be shown before the matter may progress to the next step (usually [insert realistic time to show improvement relevant to the Company, for example, one month, three months], but this may vary depending on the circumstances);
  • explain to the employee that they are being given a first written warning in relation to their performance (and that the warning will be confirmed in writing following the meeting); and
  • explain to the employee that their performance will be monitored over the timeframe in which they are required to improve.

Following the meeting [the Company] should take steps to ensure that any additional training or support needs that were identified are met, and should actively monitor the employee’s performance.

Step Four — A Final Written Warning will be provided to the employee if the employee’s poor performance has not improved within the time set under Step Three. [Insert relevant person, for example The Manager] should arrange a final formal meeting with the employee to further discuss the situation and provide the employee with a final written warning.

At the meeting [insert relevant person, for example the Manager] should:

  • summarise the matters that were discussed in the Steps 1,2 and 3 informal and formal meetings;
  • inform the employee that [the Company] is not of the view that the employee’s performance has improved sufficiently since the first meeting by giving specific examples;
  • give the employee an opportunity to respond to the allegations;
  • consider and discuss with the employee whether additional training or support may assist the employee improve their performance;
  • detail the improvements to performance that need to take place;
  • notify the employee of the required timeframe in which improvement must be shown before disciplinary action may be taken (usually [insert realistic time relevant to the Company, for example, two weeks], but this may vary depending on the circumstances);
  • explain to the employee that they are being given a final written warning in relation to their performance (and that the warning will be confirmed in writing following the meeting); and
  • explain to the employee that their performance will be monitored over the timeframe in which they are required to improve.

Following the meeting [insert relevant person, for example the Manager] should take steps to ensure that any additional training or support needs that were identified are met, and should actively monitor the employee’s performance/behaviour.

Step Five —Disciplinary action may be taken by [the Company] if Steps One to Five do not bring about the necessary changes in performance. Disciplinary action may include the termination of the employee’s employment.

In the event that the decision has been made to terminate the employee’s employment, the employee will be given advance warning of the dismissal meeting (usually 24 hours) and will be given the opportunity to have a support person present.

At the meeting the [insert relevant person, for example the Human Resources Manager] will review all previous warnings in conjunction with the [insert relevant person, for example the General Manager] and will give the employee the opportunity to provide an explanation or response.

If the employee’s explanation or response requires further investigation then consideration will be given to the employee’s response prior to deciding whether dismissal will occur.

In the event that the employee’s explanation or response does not require further investigation, [the Company] will terminate the employee’s employment.

The Process for Conduct Issues

When a minor issue arises with an employee’s conduct, [the Company] will endeavour to address it as soon as possible, initially on an informal basis, by the employee’s supervisor speaking to the employee. [The Company] recognises that it is unfair to “save up” incidents of poor conduct to be used against an employee at a later date, so these informal discussions will take place at the time of, or soon after, an incident of poor conduct. If the conduct becomes repetitive, or is serious enough, the following process will generally be followed.

Step One — An Informal meeting will be arranged by [insert relevant person, for example, the employee’s direct Manager] where the conduct issue has been identified by [insert relevant person, for example the Manager]. Note that this Step may be skipped if the conduct is of a more serious nature, or has serious consequences for [the Company].

At the meeting [insert relevant person, for example the Manager] should:

  • inform the employee of the alleged conduct (giving specific examples of the unsatisfactory conduct);
  • give the employee an opportunity to respond to the allegations;
  • consider and discuss with the employee whether additional training or support may assist the employee avoid the unsatisfactory conduct;
  • notify the employee of the required timeframe by which the conduct must be shown to have stopped (or if relevant, improved) before the matter may progress to the next step (usually [insert relevant time for the Company, for example, one week, three weeks], but this may vary depending on the circumstances); and
  • explain to the employee that their behaviour will be monitored over the timeframe in which they are required to cease the conduct (or if relevant, improve).

Following the meeting [insert relevant person, for example the Manager] should take steps to ensure that any additional training or support needs that were identified are met, and should actively monitor the employee’s conduct.

Step Two — A Verbal warning will be provided to an employee if the employee’s unsatisfactory behaviour has not stopped or improved within the time set under Step One, or the conduct is serious enough or has serious consequences justifying an early verbal warning. [Insert relevant person, for example The Manager] should arrange a formal meeting with the employee to further discuss the situation and provide the employee with a verbal warning.

At the meeting [insert relevant person, for example the Manager] should:

  • summarise the matters that were discussed in the Step One informal meeting; OR, if the employee has moved directly to Step Two inform the employee of the alleged conduct (giving specific examples of the unsatisfactory conduct;
  • (if relevant) inform the employee that [the Company] is not of the view that the employee’s conduct has stopped (or if relevant, improved sufficiently) since the first meeting by giving specific examples;
  • give the employee an opportunity to respond to the allegations;
  • consider and discuss with the employee whether additional training or support may assist the employee improve their conduct;
  • detail the changes or improvements to conduct that need to take place;
  • notify the employee of the required timeframe in which changes or improvement must be shown before the matter may progress to the next step (usually [insert relevant time for the Company, for example, one month, three months], but this may vary depending on the circumstances);
  • explain to the employee that they are being given a verbal warning in relation to their conduct; and
  • explain to the employee that their conduct will be monitored over the timeframe in which they are required to improve.

Following the meeting [insert relevant person, for example the Manager] should take steps to ensure that any additional training or support needs that were identified are met, and should actively monitor the employee’s performance/behaviour.

Step Three — A First Written Warning will be provided to the employee if the employee’s conduct has not changed, or if relevant, improved within the time set under Step Two (or if the conduct justifies an immediate Written Warning). [The Company] should arrange a formal meeting with the employee to further discuss the situation and provide the employee with a first written warning.

At the meeting [insert relevant person, for example the Manager] should:

  • summarise the matters that were discussed in the Step One and Two informal and formal meetings, OR, if the employee has moved directly to Step Three inform the employee of the alleged conduct (giving specific examples of the unsatisfactory conduct;
  • (if relevant) inform the employee that [insert relevant person, for example the Manager] is not of the view that the employee’s behaviour has changed or improved sufficiently since the first meeting by giving specific examples;
  • give the employee an opportunity to respond to the allegations;
  • consider and discuss with the employee whether additional training or support may assist the employee improve their performance or unsatisfactory behaviour;
  • detail the changes or improvements to conduct that need to take place;
  • notify the employee of the required timeframe in which improvement must be shown before the matter may progress to the next step (usually [insert realistic and relevant time for the Company, for example, two weeks, one month], but this may vary depending on the circumstances);
  • explain to the employee that they are being given a first written warning in relation to their performance/behaviour (and that the warning will be confirmed in writing following the meeting); and
  • explain to the employee that their performance/behaviour will be monitored over the timeframe in which they are required to improve.

Following the meeting [insert relevant person, for example the Manager] should take steps to ensure that any additional training or support needs that were identified are met, and should actively monitor the employee’s performance/behaviour.

Step Four — A Final Written Warning will be provided to the employee if the employee’s poor performance or unsatisfactory behaviour has not improved within the time set under Step Three, or of the conduct is so serious that it justifies moving to a final written warning. [Insert relevant person, for example The Manager] should arrange a final formal meeting with the employee to discuss the situation and provide the employee with a final written warning.

At the meeting [insert relevant person, for example the Manager] should:

  • summarise the matters that were discussed in the Steps 1,2 and 3 informal and formal meetings: OR, if the employee has moved directly to Step Four, inform the employee of the alleged conduct (giving specific examples of the unsatisfactory conduct;
  • (if relevant) inform the employee that [the Company] is not of the view that the employee’s conduct has not changed or improved sufficiently since the last meeting by giving specific examples;
  • give the employee an opportunity to respond to the allegations;
  • consider and discuss with the employee whether additional training or support may assist the employee cease or improve their conduct;
  • detail the changes or improvements to conduct that need to take place;
  • notify the employee of the required timeframe in which changes or improvement must be shown before disciplinary action may be taken (usually [insert realistic and relevant time for the Company, for example, two weeks, one month], but this may vary depending on the circumstances);
  • explain to the employee that they are being given a final written warning in relation to their conduct (and that the warning will be confirmed in writing following the meeting); and
  • explain to the employee that their conduct will be monitored over the timeframe in which they are required to change or improve.

Following the meeting [insert relevant person, for example the Manager] should take steps to ensure that any additional training or support needs that were identified are met, and should actively monitor the employee’s performance/behaviour.

Step Five — Disciplinary action may be taken by [the Company] if Steps One to Five do not bring about the necessary changes in behaviour. Disciplinary action may include the termination of the employee’s employment.

Where it appears likely that a decision to exercise disciplinary action will be made, the employee will be given advance warning of the meeting (usually 24 hours) and will be given the opportunity to have a support person present.

At the meeting the [insert relevant person, for example the Manager, or Human Resources Manager] will review all previous warnings in conjunction with the [insert relevant person, for example a more senior Manager] and will give the employee the opportunity to provide an explanation or response.

Disciplinary action may also be taken in the case of serious misconduct. If [the Company] believes that serious misconduct has taken place, the following steps will also apply at the meeting:

  • the employee will be informed of the alleged misconduct, being as specific as possible;
  • the employee will be given an opportunity to respond to the allegations;

If the employee’s explanation or response requires further investigation then consideration will be given to the employee’s response prior to deciding whether disciplinary action should be taken.

If it is determined (either at the meeting or after further investigation) that all or some of the concerns or allegations are proven and after consideration of:

  • the seriousness of the poor performance misconduct;
  • the response or explanation given by the employee;
  • any mitigating factors put forward by or on behalf of the employee;
  • the employee’s employment history and record; and
  • whether there are appropriate and reasonable alternatives to termination,

the [insert relevant person, for example the Manager, Supervisor or Human Resources Manager] will make a decision on what, if any, disciplinary action is appropriate, or in the case of serious misconduct being found, [the Company] will terminate the employee’s employment..

Criminal activity

Any alleged criminal acts committed in the course of the employee’s work will be reported to the police.

Where the employee is the subject of a criminal charge, which is alleged to have been committed in the course of the employee’s work, [the Company] has a responsibility to respond to the allegation consistent with this Policy even when the Police are involved and to determine appropriate action in terms of the employees employment with [the Company].

Liaison between the Police and the [the Company] is necessary to ensure the Police investigation is not compromised in any way. At the discretion of [the Company], discipline action may be put on hold pending the outcome of the police investigation.

Free Performance and Misconduct Policy Template

Download this free Performance and Misconduct Policy template for Australian businesses to help ensure your employees are aligned on your policies around performance and misconduct, and your business is protected when issues inevitably arise.

By downloading this template, you agree to use it at your own risk and under your own legal advice. Nothing on this site should be considered legal advice.