Performance Improvement Plan
Workplace complaint Investigation

Performance Improvement Plan Workplace complaint Investigation – How do you turn a Performance Improvement Plan into a complaint requiring workplace investigation?

I have conducted many workplace investigations that have result in a complaint of bullying and harassment being lodged against the manager who has placed an employee on a Performance Improvement Plan. The questions I must always address in these types of matters is, “Was the Performance Improvement Plan Workplace an example of Reasonable Management Action”.
To answer this there are two components I must consider;

  1. Was the Performance Improvement warranted?
  2. Was the Performance Improvement Plan carried out in a reasonable manner

The Fair Work Act has defined Reasonable Management Action as it applies to workplace bullying.

‘Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.’
Fair Work Act s789FD (2)

The first hurdle “Was the Performance Improvement warranted?” is generally easily jumped as there is usually a reason why a manager commences performance improvement.

It is the second hurdle, the application is where problems and complaints arise from the way in which the Performance Improvement Plan was carried out.  Here are some suggestion of what NOT to do.

(1) Surprise

A Performance Improvement Plan should not be a surprise.  A good manager will coach staff during regular catch-ups or one on ones and identify any problems early. If you have a tendency of avoid issues or not having or cancelling one on one feedback sessions and then surprising your staff with complaints about their performance and going straight to a formal Performance Improvement Plan that may be considered as unreasonable and you may receive complaints.

If you intend to discuss placing an employee on a Performance Improvement Plan be clear in your invitation, for example if you are doing it via email it should be described as a;
“Meeting to discuss your performance” not a “catch up” unless it is accompanied with to “discuss your performance” I never recommend “a little chat”

“(2) Expecting too much

If a staff member is struggling with their role perhaps it is too much for them, perhaps they really don’t have the skill. If you make a demand of improved performance without understanding the problem that may be considered as unreasonable and you may receive complaints.

(3) Not clearly explaining the issues/problems

A component of procedural fairness is the right to know. The right to know is referenced in the Fair Work Act 2009 – s387 – Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account;

(b) whether the person was notified of that reason

(e) if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal

Failure to notify and or explain the issue to your employees may be considered as unreasonable and you may receive complaints and in the case of a dismissal it may be considered to be harsh at the FWC.

(4) Not Listening

Another component of procedural fairness is the right to be heard. The right to be heard is referenced in the Fair Work Act 2009 – s387 – Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(c)    Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

You MUST listen and take into account the employees response to the issues you raise with an open mind, remember treat your employees in the same manner that you would like to be treated in their place.

(5) Not taking your time

Be patient, the goal of a Performance Improvement Plan is to create a better employee. This may take time, Rome wasn’t built in a day, don’t rush things be systematic .

(6) Not having an actual plan

A Performance Improvement Plan should not be ad-hoc nor should it be one size fits all, Carefully tailor your plan to suit the needs of the business and the specific employee.

If you don’t do any of these things and of course you don’t act in an aggressive, bullying, harassing or inappropriate manner during the process and there is a complaint, an investigation is more likely to find that it was “reasonable management action carried out in a reasonable manner.”

NOTE: Investigations should be carried out by experienced investigators who have a comprehensive understanding of the Fair Work Act as it applies. Need help, contact us for full or assisted investigation services, more details

If you are not sure about Reasonable Management Action or Procedural Fairness AWPTI can assist.

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter issues in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

This is general information only. It does not replace advice from a qualified legal professional or workplace investigator in your state or territory.  It is recommended that should you encounter issues in the workplace that you seek advice from suitability qualified and experienced legal professionals or workplace investigators

 

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