Performance Management and Misconduct, What’s the Difference?

We all know the effects that an employee’s performance can have on the overall success of a business. An employee performing at their best can have positive effects on a business’s overall performance, efficiency, morale and employee turnover. So, when you have an employee that is not performing well, meeting the business expectations or whose behaviour is not aligned with that of the business, the effects can be felt far and wide. Therefore, it is important that these matters are dealt with effectively, efficiently and in accordance with the relevant legal rules and regulations.

In order to correct the performance or behaviour of an employee it is important to understand if you are dealing with a performance issue, or a behavioural issue. In any event the issue needs to be raised with the employee before you carry out any disciplinary action. But first let’s look at what the difference is between a performance issue and a behavioural issue.

Poor Performance

Poor performance is where an employee is not meeting the required standard or expectation for the position of which the employee is engaged to do. For example, this may be evident by the employee being unable to

• achieve set targets or goals
• meet KPI’s
• repeated mistakes
• show initiative

Addressing poor performance

Typically, poor performance is addressed and corrected through a performance management plan, or a performance improvement plan. Addressing the issue this way provides opportunity for the issue to be clearly identified and an action plan put in place to address the performance issues. With the relevant support, the employee should be given reasonable opportunity, to improve their performance to the required standard.

Depending on the seriousness of the performance issue or the length of time the issue has been occurring, a formal performance plan may not be necessary. The deficit in the employee performance may simply be a result of miscommunication or a misunderstanding of instructions provided. In this instance an informal discussion regarding why they are not performing and clearly outline what it is that needs to be changed may be all that is required.

Performance management should only be used to address the requirements of the role, not behaviour in the workplace.

If, after providing the employee an opportunity to improve, their performance still hasn’t improved to the required standard it may be decided to start a down the path of disciplinary action.

Behavioural Issue

Behavioural issue or misconduct is conduct that is generally unacceptable, or contrary to the employee’s employment contract or a breach of the company’s policies and or procedures. Misconduct can include, but is not limited to –

• persistent lateness
• excessive usage of mobile phone for personal matters
• bad language
• misuse of company equipment.

However, behaviour that is wilful and deliberate or causes a serious and imminent risk to the reputation, viability or profitability of the business or health and safety of a person, may be deemed as serious misconduct. This may include an act of –

• violence
• sexual harassment
• theft
• vandalism

An employee found to have acted in such a manner, may give their employer grounds to carry out a summary dismissal, that is a termination without notice.

Addressing a behavioural issue

Typically, a behavioural issue or misconduct is addressed with the employee following an investigation into the behaviour or conduct. Depending on the seriousness of the allegation, the investigation process does not always need to be formal in nature. It may simply be a gathering of further information and facts of the matter.

Following the investigation, the allegations should be communicated to the employee who which they should be afforded the opportunity to respond and present their version of events. It is important to ensure that the process followed is procedurally fair and reasonable. Skipping steps or rushing to terminate the employee may result in the process being harsh, unjust, unreasonable and in some cases unlawful.

Following the investigation and after hearing the employee’s response, should then consideration then given to the appropriate penalty. This may include counselling the employee, giving the employee a warning or in some case termination of employment.

Disciplinary Action

Whether you are dealing with a performance issue or a behavioural issue the main principles of undertaking disciplinary action is mostly the same.

In most situations, except for behaviour that is deemed serious misconduct, it is always recommended to at least provide the employee with a warning before carrying out a termination of employment. While in some instances a verbal warning will be sufficient, it would be recommended to have provided the employee with the warning in writing. This provides evidence that the employee was provided notice of the performance or conduct, and the possible consequences should it continue.

In the event the employee does not improve or continues with inappropriate behaviour you may decide at this point to either issue a final written warning or terminate their employment. However before terminating employment, ensure the employee has had opportunities to improve and has been made aware of the consequences. This will not only mitigate risk of an unfair dismissal but also allows the employee to become more capable and perhaps mend their ways, which in turn will be of benefit to the business.

More Information

Do you need assistance in addressing performance or conduct issues in your workplace? Or you may simply need a template to address such matters on your own. Our Workplace Relations and Legal Team are more than happy to help. Reach out to the team on (02) 6175 5900.