When Performance Becomes Disciplinary

A disciplinary process is never the first step for a performance issue. Before I hear the collective gasp, it is important to point out the difference between a performance issue and behaviour issue.

Behaviour issues relate to how an employee conducts themselves in the workplace. These can include violations of organisation policies, inappropriate conduct, or behaviours that disrupt the work environment. The primary focus here is on the conduct and interpersonal relationships, rather than the quality or quantity of work produced. Behaviour issues, unless minor, can be addressed through the disciplinary process.

Performance issues relate to an employee’s ability to meet the expectations of their role in terms of output, quality, and effectiveness. These issues often arise from a lack of skills or external factors affecting productivity. If there is a performance issue, then the employer is obliged to assist the employee to reach the standards required and give the employee time to reach that standard, before engaging in the disciplinary process.

If an employee doesn’t have the skills, it is a performance issue. If the employee has the skills but they are not applying them, it is a behaviour issue.

There are times when poor performance escalates to a level that necessitates a disciplinary approach. Recognising when to transition from performance management to a disciplinary process is essential. The shift typically occurs when an employee fails to meet performance expectations despite reasonable support and opportunities for improvement.

Key steps in the performance management process

1. Document Performance Issues: Before initiating any disciplinary action, it’s crucial to have a detailed record of the performance issues. This includes specific examples, feedback given, and any support provided to the employee. Documentation serves as evidence of the employee’s performance and your efforts to assist them.
2. Open Communication: Approach the employee to discuss their performance. This conversation should be supportive and aim to understand any underlying factors contributing to their performance. Ensure that the employee is aware of the specific areas of concern, what the required standard is, and provide them with an opportunity to respond.
3. Implement a Performance Improvement Plan (PIP): If performance issues persist, develop a PIP outlining clear standards to be achieved and the timeframe for improvement. This plan should include regular check-ins to assess progress and setting out any additional support that will be provided.
4. Evaluate Progress: After the PIP period, evaluate whether the employee has met the standards consistently. If they haven’t, you can consider initiating a disciplinary process. Prior to moving to a disciplinary process you need to notify the employee that if they do not reach the required standard, that this is a possible outcome.
5. Follow Disciplinary Procedures: If you decide the disciplinary process is appropriate for managing the ongoing performance issue you must follow the standard disciplinary process. This may be specified in the Employment Agreement or a policy. As a minimum, you must notify the employee in advance of the meeting what the allegations are. They are still allegations even though you have been through a PIP with them. They are entitled to respond before you make any decisions, they are entitled to a support person or representative at the meeting, and you need to tell them before the meeting what the possible outcome is. i.e. it may result in a disciplinary warning. As a minimum you will have to follow this process three times before reaching a point that you can dismiss. There are no short cuts.

Conclusion

Transitioning from performance management to a disciplinary process is a significant step that requires careful consideration and adherence to legislative obligations. By following a structured approach, you can ensure that your actions are fair, transparent, and compliant with New Zealand’s legislation and case law.

If you have any concerns in your workplace and would like to talk through what you should do next, please call us.