Transcript Slide 1

Employment Law Seminar
Social Services Providers
May 2012
Susan Hornsby-Geluk
What we will cover:
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Employment legislation and institutions
Performance Management
Disciplinary processes
Mediation
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
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Must engage in good faith
Bargaining process agreements
Communications during bargaining
Facilitated bargaining
• Strikes and Lockouts
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
Institutions
• The Mediation Service of the Department
of Labour
• The Employment Relations Authority
• The Employment Court
• The Court of Appeal
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:
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Failure to carry out instructions
Serious errors of judgement
Mistakes
Lateness
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?
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
Formal Performance
Management Process
• Four steps
– Informal Counselling
– First Warning
– Final Warning
– Dismissal
Informal Counselling
• Advise employee of shortfall in their
performance
• Clarify expectations
• Explore what assistance the employee
needs
• Confirm discussion in writing
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
Performance
Issue
Expectation
Support and
training
Assessment
Review
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 email 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]
•[date and error]
•[date and error]
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.
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
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?
Final Warning
• If performance continues to be unsatisfactory –
follow the same process:
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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
What if performance improves?
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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.
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
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?
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
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
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:
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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
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
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?
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
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
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
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
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
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
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!
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
The Mediation Process
Introductions and Opening Statements
Past
Mediator Summarises Issues
Understanding
Separate sessions or cross table
discussions
Problem solving
Brainstorm solutions/negotiation
Resolution
Agreement
Future
Pros
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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
Cons
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Has to be voluntary and genuine to work
Depends on good communiation skills
Not transparent
Pressure to compromise
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”
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
At the Mediation –
Do’s and Don’ts
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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
Possible Outcomes
• What is the going rate?
• Financial remedies can include:
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Lost wages
Lost benefits
Compensation for distress and humiliation (note IRD scrutiny)
Legal costs
• Other ideas include:
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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
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:
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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
Questions?
Contact
• Susan Hornsby-Geluk
• ddi: 04. 471 5797
• [email protected]
• www.chenpalmer.com
Chen Palmer
www.chenpalmer.com
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