Presentation on theme: "Employment Law Seminar Social Services Providers May 2012"— Presentation transcript:
1Employment Law Seminar Social Services Providers May 2012 Susan Hornsby-Geluk
2What we will cover: Employment legislation and institutions Performance ManagementDisciplinary processesMediation
3Employment Relations Act Overriding obligation of “good faith”Duty to be responsive and communicativeFreedom of associationRight to choose whether to join a union or notCollective bargainingMust engage in good faithBargaining process agreementsCommunications during bargainingFacilitated bargainingStrikes and Lockouts
4Employment Relationship Problems What is a personal grievance?Unjustified dismissalUnjustified disadvantageTest:“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 responsesSubstance and processRemedies
5Institutions The Mediation Service of the Department of Labour The Employment Relations AuthorityThe Employment CourtThe Court of Appeal
6Performance Management or Disciplinary Process? The two processes are distinctWhen is it a performance or a disciplinary issue?Same situation can often be addressed in different waysFor example:Failure to carry out instructionsSerious errors of judgementMistakesLateness
7Factors 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?
8Performance Management – laying the foundation Periodically revise job descriptions and review performance measures – do so in 6 and 12 monthly Performance Review DiscussionsCommunicate and document expectationsRecognise need for flexibility and changing work environmentWhat can be ‘imposed’ and what requires employee consent?When changing targets, consider the “reasonableness” of the changes
9Formal Performance Management Process Four stepsInformal CounsellingFirst WarningFinal WarningDismissal
10Informal Counselling Advise employee of shortfall in their performance Clarify expectationsExplore what assistance the employee needsConfirm discussion in writing
11Performance Improvement Plan Clear, measurable, objectively reasonable targetsExplanation of what is necessary for improvement to required levelOffer of additional support/trainingTimeframe for improvement -set review dateRegular meetings to monitor progress/improvementAdvise employee if no improvement may receive warningCan be added to and amended over time
12Performance IssueExpectationSupport and trainingAssessmentReviewBudget 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]
13Invitation to first formal review meeting Collate/document examples of poor performanceLetter to employee inviting to meeting:Preliminary assessment of performance against targets, and identify areas of concernRequest meeting to hear employee’s feedback/ explanationAdvise that could be issued with a first warningOpportunity to have representative or support person at the meeting.
14First formal review meeting At the meeting:Discuss areas of concernGive positive feedback if applicableAllow employee opportunity to respond and raise issues by way of mitigationConsider response, including any mitigating factorsIf unsatisfactory, issue first warning
15Warnings Warning should be in writing: Clearly identify expectationsSet next review dateAdvise continued poor performance may result in final warningTimeframes in warnings – should you include one?
16Final WarningIf 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/explanationAdvise continued poor performance may result in dismissal
17What if performance improves? Require sustained improvementGradually 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.
18Termination Same process: At the meeting Write setting up meeting Advise that dismissal could resultInvite employee to have representative presentAt the meetingWork through history of performance processProvide ‘fresh’ examples of performance gapSeek feedback/explanation
19Termination cont. Take time to consider the decision Do not prepare a decision in advanceDismissal 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?
20Termination cont. Preliminary decision Final decision If performance and explanation unsatisfactory, advise preliminary decision to dismissInvite employee to provide comments in response and by way of mitigationFinal decisionConfirm decisionDismissal will be “on notice” – pay in lieuWhen 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
21Misconduct No precise definition Examples include: Disobeying/disregarding instructionsRepeated latenessBeing absent without authorisationInappropriate or excessive internet use during work hoursSwearing in workplace
22Serious misconductBehaviour 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 workplaceWilful damage of propertyBeing under influence of drugs or alcoholConflict of interestBeing convicted of an offenceSexual harrassment
23Procedure for misconduct/serious misconduct situations Identify specific allegationsConsider suspension3 stages:InvestigationInterview processDecisionProcess:First warningFinal warningDismissalCan go straight to final warning or summary dismissal in serious cases
24SuspensionSending the employee home, without their consent = suspensionCheck employment agreementFair process must be followed:Explain reasons suspension may be appropriateInvite and consider employee’s responseConfirm decision in writingSuspension is on payWhat to advise workmates?
25Investigations Gather all relevant facts: Check code of conduct and policies for warning and dismissal proceduresCheck for procedures in the relevant employment agreementCheck employee’s personnel fileConduct your own investigation into the matters of concern and compile witness statementsCheck past practices for similar offencesAssess credibility of witnesses
26Interview ProcessGive employee letter informing of purpose of the interview and that dismissal/warning could be a consequenceEnsure you have at least one witness in attendanceMake notes during the meetingOutline the allegation and supporting evidence to the employeeGive the employee adequate time to respond to the allegationsListen fully to the employee’s response(s)Ask the employee if they have seen Rules/Policy and if aware of the penalty for such misconductExplore other witnesses’ accounts or versionsDiscuss the employee’s explanation(s)Be prepared to investigate further
27Make the decision Take time to consider the decision Do not prepare a decision in advanceForm a preliminary view regarding what action should be taken and invite employee to commentThe applicable standard is the balance of probabilitiesWhen communicating the decision, ensure the employee’s representative is present or, if they cannot be present, that they know what your decision isArrange for any outstanding holiday pay and final pay to be paid
28Dealing with claims of bullying/harassment Where employee claims that process itself amounts to bullying/harassment:Use a different manager to investigate the claimContinue with performance management process, using alternative managerIf investigation demonstrates that there is no bullying, previous manager can step back into processDo not stop performance management process whilst allegation investigated
29Dealing with stress claims Two circumstances:Claim poor performance due to stress; orClaim that performance management process causing stressPoor performance due to stress:Consider whether workload and work demands/environment is reasonableDetermine if any steps can be put in place to reduce stressOffer EAP counsellingConsider mitigating circumstances (i.e. personal issues) when making decision on whether to issue warning or dismissExternal/clinical assessment by expert
30Dealing with stress claims cont. Stress is due to performance management process:Review standards and process to determine if reasonableDetermine if any steps can be put in place to reduce stressOffer EAP counsellingProvided process followed is fair, no reason to stopCannot force employee to meet if unwellSuggest mediation?Medical diagnosis – psychologist/psychiatrist
31Tricks and tips for dealing with difficult employees/representatives Focus on the issue(s) and not the personEnsure that you communicate clearlyCheck that you understand what the employee/representative is trying to sayRemain calm and approachableRefer them back to Codes of Conduct etcFollow a fair and thorough processListen – they may have a point!Remember – it is your process!
32Mediation under the ERA Mediation services provided by the Department of LabourCall the Mediation Service to arrange a mediationMay be directed by the Authority or the CourtCan address legal and non-legal issuesCan involve:Employer and EmployeeDifferent EmployeesParties involved in collective bargainingConfidentiality is ensured
33The Mediation Process Introductions and Opening Statements Past Mediator Summarises IssuesUnderstandingSeparate sessions or cross table discussionsProblem solvingBrainstorm solutions/negotiationResolutionAgreementFuture
34Pros Gives control of outcome to the parties Issues are identified and exploredFlexible solutionsPromotes understandingConfidential, non-threatening and without prejudiceCan strengthen relationships with staffCheaper and quicker than Court
35Cons Has to be voluntary and genuine to work Depends on good communiation skillsNot transparentPressure to compromise
36Preparation for a Mediation Hearing Gain a clear understanding of:The factsThe important documentsWhat outcome you wantWhat outcome the employee wantsPrepare a mediation planGet approval for possible outcomes in advanceMake sure there are no “smoking guns”
37Preparation cont. Consider: Overall mediation strategy Interests and prioritiesWhat you can offerFall back options. What if there is no agreement?Implications of going to a hearingAlternatives to a mediated agreementWho will attendDo you need a lawyer?What will be saidWhat documents to take
38At the Mediation – Do’s and Don’ts Show a willingness to listenActually listen – mediation is a “reality check”Think about the strengths of the argumentsBe prepared think laterallyLet the employee “vent”Tell the employee some home truthsUse the mediator to reinforce your argumentsDon’t be pressured to settleDon’t be intimidated by legal bullyingDon’t exceed your authority
39Possible Outcomes What is the going rate? Financial remedies can include:Lost wagesLost benefitsCompensation for distress and humiliation (note IRD scrutiny)Legal costsOther ideas include:ApologyPositive referenceChanging the termination dateChanging the type of disciplinary actionAllowing a resignation rather than a dismissalRedeployment, retraining or demotionAn undertaking to make no public comment
40At the end of the Mediation Record the outcome in writingMake sure that the settlement agreement is accurate and completeCheck for the following:Full and final settlement of ALL issuesSigned by both sidesConfidentialityReferencesReturn of propertyAgreed public statementsTiming of paymentsPenalty/clawback provisionsObtain the seal of the Mediation Service
41Questions? Contact Susan Hornsby-Geluk ddi: 04. 471 5797
42Chen Palmer www.chenpalmer.com Susan Megan Blair Kelly Photo under constructionBlairKelly