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Employment Law Seminar Social Services Providers May 2012 Susan Hornsby-Geluk.

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Presentation on theme: "Employment Law Seminar Social Services Providers May 2012 Susan Hornsby-Geluk."— Presentation transcript:

1 Employment Law Seminar Social Services Providers May 2012 Susan Hornsby-Geluk

2 What we will cover: Employment legislation and institutions Performance Management Disciplinary processes Mediation

3 Employment Relations Act Overriding obligation of “good faith” –Duty to be responsive and communicative Freedom of association –Right to choose whether to join a union or not Collective bargaining –Must engage in good faith –Bargaining process agreements –Communications during bargaining –Facilitated bargaining Strikes and Lockouts

4 Employment Relationship Problems What is a personal grievance? –Unjustified dismissal –Unjustified disadvantage Test: “what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred” Contemplates a range of reasonable responses Substance and process Remedies

5 Institutions The Mediation Service of the Department of Labour The Employment Relations Authority The Employment Court The Court of Appeal

6 Performance Management or Disciplinary Process? The two processes are distinct When is it a performance or a disciplinary issue? Same situation can often be addressed in different ways For example: –Failure to carry out instructions –Serious errors of judgement –Mistakes –Lateness

7 Factors to Consider The Authority would expect you to consider: –Nature and circumstances of the conduct. –Was it deliberate or unintentional? –Could it fairly be described as misconduct? –The section 103A Employment Relations Act 2000 test. –How have other situations been dealt with/disparity?

8 Performance Management – laying the foundation Periodically revise job descriptions and review performance measures – do so in 6 and 12 monthly Performance Review Discussions Communicate and document expectations Recognise need for flexibility and changing work environment What can be ‘imposed’ and what requires employee consent? When changing targets, consider the “reasonableness” of the changes

9 Formal Performance Management Process Four steps –Informal Counselling –First Warning –Final Warning –Dismissal

10 Informal Counselling Advise employee of shortfall in their performance Clarify expectations Explore what assistance the employee needs Confirm discussion in writing

11 Performance Improvement Plan Clear, measurable, objectively reasonable targets Explanation of what is necessary for improvement to required level Offer of additional support/training Timeframe for improvement -set review date Regular meetings to monitor progress/improvement Advise employee if no improvement may receive warning Can be added to and amended over time

12 Performance Issue ExpectationSupport and training AssessmentReview Budget forecasts are not being provided to manager in time for weekly updates and frequently have errors. Jane must ensure all budget forecasts are accurate, complete and provided to me by by no later than 12pm on the Monday of the week they relate to. Session with Mary-Lou for refresher training on completion of budget forecasts to occur by 5 August. Jane to use daily “To Do Lists” to ensure work completed on time. Bobby-Joe available for mentoring on time mgmt as needed. Fortnightly catch-ups with me. Review of weekly budget forecasts, including time received. 1 September 2011: Budget forecasts were received on time on the following dates [xxx]. The budget forecast was not received until Tuesday for the week of [xxx]. The budget forecasts contained the following errors: [date and error]

13 Invitation to first formal review meeting Collate/document examples of poor performance Letter to employee inviting to meeting: –Preliminary assessment of performance against targets, and identify areas of concern –Request meeting to hear employee’s feedback/ explanation –Advise that could be issued with a first warning –Opportunity to have representative or support person at the meeting.

14 First formal review meeting At the meeting: –Discuss areas of concern –Give positive feedback if applicable –Allow employee opportunity to respond and raise issues by way of mitigation –Consider response, including any mitigating factors –If unsatisfactory, issue first warning

15 Warnings Warning should be in writing: –Clearly identify expectations –Set next review date –Advise continued poor performance may result in final warning Timeframes in warnings – should you include one?

16 Final Warning If performance continues to be unsatisfactory – follow the same process: –Letter identifying concerns. –Formal meeting. –Consider response. –If appropriate, issue final warning. Examples of performance gap must be “fresh” Seek feedback/explanation Advise continued poor performance may result in dismissal

17 What if performance improves? Require sustained improvement Gradually less frequent reviews. If performance falls again, re-institute PIP. If within reasonable timeframe of last warning (i.e. 6 months depending on similarity of performance issue), can rely on warning rather than starting process again.

18 Termination Same process: –Write setting up meeting –Advise that dismissal could result –Invite employee to have representative present At the meeting –Work through history of performance process –Provide ‘fresh’ examples of performance gap –Seek feedback/explanation

19 Termination cont. Take time to consider the decision Do not prepare a decision in advance Dismissal must be what a fair and reasonable employer could do in the circumstances. Should consider: –Are the expectations reasonable? –Is there demonstrable non-performance or is there dispute over whether the requirements of the plan have been met? –If there is a dispute, have reasonable investigations been undertaken? –Have you provided the training and support you undertook to provide? –Are there any mitigating factors that should be considered? –Has the employee had the opportunity to comment on all the information you are considering?

20 Termination cont. Preliminary decision –If performance and explanation unsatisfactory, advise preliminary decision to dismiss –Invite employee to provide comments in response and by way of mitigation Final decision –Confirm decision –Dismissal will be “on notice” – pay in lieu –When communicating the decision, ensure the employee’s representative is present or, if they cannot be present, that they know what your decision is. –Arrange for any outstanding holiday pay and final pay to be paid. Confirm decision in writing

21 Misconduct No precise definition Examples include: –Disobeying/disregarding instructions –Repeated lateness –Being absent without authorisation –Inappropriate or excessive internet use during work hours –Swearing in workplace

22 Serious misconduct Behaviour that is so serious that it jeopardises the employment relationship i.e. it goes to the heart of the contract, and could justify dismissal without notice. Again, no precise definition. Examples include: –Violence or threats of violence in the workplace –Wilful damage of property –Being under influence of drugs or alcohol –Conflict of interest –Being convicted of an offence –Sexual harrassment

23 Procedure for misconduct/serious misconduct situations Identify specific allegations Consider suspension 3 stages: –Investigation –Interview process –Decision Process: –First warning –Final warning –Dismissal Can go straight to final warning or summary dismissal in serious cases

24 Suspension Sending the employee home, without their consent = suspension Check employment agreement Fair process must be followed: –Explain reasons suspension may be appropriate –Invite and consider employee’s response –Confirm decision in writing Suspension is on pay What to advise workmates?

25 Investigations Gather all relevant facts: –Check code of conduct and policies for warning and dismissal procedures –Check for procedures in the relevant employment agreement –Check employee’s personnel file –Conduct your own investigation into the matters of concern and compile witness statements –Check past practices for similar offences –Assess credibility of witnesses

26 Interview Process Give employee letter informing of purpose of the interview and that dismissal/warning could be a consequence Ensure you have at least one witness in attendance Make notes during the meeting Outline the allegation and supporting evidence to the employee Give the employee adequate time to respond to the allegations Listen fully to the employee’s response(s) Ask the employee if they have seen Rules/Policy and if aware of the penalty for such misconduct Explore other witnesses’ accounts or versions Discuss the employee’s explanation(s) Be prepared to investigate further

27 Make the decision Take time to consider the decision Do not prepare a decision in advance Form a preliminary view regarding what action should be taken and invite employee to comment The applicable standard is the balance of probabilities When communicating the decision, ensure the employee’s representative is present or, if they cannot be present, that they know what your decision is Arrange for any outstanding holiday pay and final pay to be paid

28 Dealing with claims of bullying/harassment Where employee claims that process itself amounts to bullying/harassment: –Use a different manager to investigate the claim –Continue with performance management process, using alternative manager –If investigation demonstrates that there is no bullying, previous manager can step back into process –Do not stop performance management process whilst allegation investigated

29 Dealing with stress claims Two circumstances: –Claim poor performance due to stress; or –Claim that performance management process causing stress Poor performance due to stress: –Consider whether workload and work demands/environment is reasonable –Determine if any steps can be put in place to reduce stress –Offer EAP counselling –Consider mitigating circumstances (i.e. personal issues) when making decision on whether to issue warning or dismiss –External/clinical assessment by expert

30 Dealing with stress claims cont. Stress is due to performance management process: –Review standards and process to determine if reasonable –Determine if any steps can be put in place to reduce stress –Offer EAP counselling –Provided process followed is fair, no reason to stop –Cannot force employee to meet if unwell –Suggest mediation? –Medical diagnosis – psychologist/psychiatrist

31 Tricks and tips for dealing with difficult employees/representatives Focus on the issue(s) and not the person Ensure that you communicate clearly Check that you understand what the employee/representative is trying to say Remain calm and approachable Refer them back to Codes of Conduct etc Follow a fair and thorough process Listen – they may have a point! Remember – it is your process!

32 Mediation under the ERA Mediation services provided by the Department of Labour Call the Mediation Service to arrange a mediation May be directed by the Authority or the Court Can address legal and non-legal issues Can involve: –Employer and Employee –Different Employees –Parties involved in collective bargaining Confidentiality is ensured

33 The Mediation Process Introductions and Opening StatementsPast Mediator Summarises IssuesUnderstanding Separate sessions or cross table discussions Problem solving Brainstorm solutions/negotiationResolution AgreementFuture

34 Pros Gives control of outcome to the parties Issues are identified and explored Flexible solutions Promotes understanding Confidential, non-threatening and without prejudice Can strengthen relationships with staff Cheaper and quicker than Court

35 Cons Has to be voluntary and genuine to work Depends on good communiation skills Not transparent Pressure to compromise

36 Preparation for a Mediation Hearing Gain a clear understanding of: –The facts –The important documents –What outcome you want –What outcome the employee wants Prepare a mediation plan Get approval for possible outcomes in advance Make sure there are no “smoking guns”

37 Preparation cont. Consider: –Overall mediation strategy –Interests and priorities What you can offer –Fall back options. What if there is no agreement? Implications of going to a hearing Alternatives to a mediated agreement –Who will attend Do you need a lawyer? –What will be said –What documents to take

38 At the Mediation – Do’s and Don’ts Show a willingness to listen Actually listen – mediation is a “reality check” Think about the strengths of the arguments Be prepared think laterally Let the employee “vent” Tell the employee some home truths Use the mediator to reinforce your arguments Don’t be pressured to settle Don’t be intimidated by legal bullying Don’t exceed your authority

39 Possible Outcomes What is the going rate? Financial remedies can include: –Lost wages –Lost benefits –Compensation for distress and humiliation (note IRD scrutiny) –Legal costs Other ideas include: –Apology –Positive reference –Changing the termination date –Changing the type of disciplinary action –Allowing a resignation rather than a dismissal –Redeployment, retraining or demotion –An undertaking to make no public comment

40 At the end of the Mediation Record the outcome in writing Make sure that the settlement agreement is accurate and complete Check for the following: –Full and final settlement of ALL issues –Signed by both sides –Confidentiality –References –Return of property –Agreed public statements –Timing of payments –Penalty/clawback provisions Obtain the seal of the Mediation Service

41 Questions? Contact Susan Hornsby-Geluk ddi:

42 Chen Palmer Photo under construction


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