Checklist for managing problems with behaviour or relationships

The following checklist is a guide only and is indicative of the types of steps to follow in dealing with problems with behaviour or relationships. Individual cases may require further specialist advice from your employment or legal advisor. In particular, you need to ensure that you provide the number of warnings required under the employee’s employment agreement or a fair and reasonable number of warnings.

You can also seek further information from the Department of Labour on 0800 20 90 20.

This process is applicable to issues such as absenteeism, lateness or employees behaving inappropriately to a colleague or customer. All these issues are described as “behaviour” in this checklist.

Remember that the Employment Relations Act focuses on good faith and the expectation that employers and employees will work together to maintain effective relationships.

In most cases, problems are sorted out satisfactorily. Where this does not occur, the Act applies a “test of justification”. Whether any action is justified depends on whether your actions and decisions are what a fair and reasonable employer would have done in the circumstances and how you have dealt with similar issues in the past.

STEPS FOR MANAGING PROBLEMS WITH BEHAVIOUR OR RELATIONSHIPS

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Check the employment agreement and the problem-solving process in the agreement. For example, be prepared to follow carefully any processes for escalating from verbal to written warnings.
Review any relevant company codes of conduct or other statements of expectations. (These are referred to below as the “known standards”.)
Either alone or with the person responsible for the employee’s supervision, identify the specific problem. Decide whether the behaviour has a negative effect on the company and breaches known standards.
Arrange to meet with the employee, saying you will be discussing his or her behaviour, advising that this may result in disciplinary action and offering the opportunity to have a support person or representative present. Record that the meeting has been arranged.
At the meeting, discuss the employee’s behaviour, clearly identifying your areas of concern. Listen to the employee’s explanations.
If you agree that your concerns are not founded, you should note this in the employee’s file. You should not raise those concerns again in any future disciplinary proceedings. If you decide that your concerns are founded, document the change in behaviour you expect, including the time frame you will allow, and advise the employee of the consequences of further similar behaviour (including that disciplinary action may follow). Note this on the employee’s file. If a warning is considered appropriate, give the employee a copy of the warning (unless it is a verbal warning only).
Follow any requirement in the employment agreement that requires removing warnings from the employee’s file if a problem does not recur or at a set expiry date for the warnings. If you have removed warnings from the file, do not rely on those past issues in any future disciplinary proceedings. Generally, your process will revert to regular performance management processes at this stage. Where behaviour does not reach a satisfactory standard, the process can be continued as follows. At any stage, if behaviour reaches the agreed standard, you can terminate the procedure in this checklist and revert to standard performance management.
If behaviour issues continue, assess the significance of the behaviour against known standards. Also review the employment agreement or company policies to confirm the number of warnings the employee must be given.
If you have not yet provided the employee with warnings, or the behaviour does not appear significant enough to warrant dismissal, follow these steps: Arrange to meet with the employee. Inform them that you will be discussing the continuing behaviour, advising that this may result in disciplinary action and offering the opportunity to have a support person or representative present. Record that the meeting has been arranged.
At the meeting, discuss the employee’s behaviour, clearly identifying your areas of concern. Listen to the employee’s explanations. If you are not satisfied with the employee’s explanations, document the change in behaviour you expect, including the time frame you will allow, and advise the employee of the consequences of further similar behaviour (including that dismissal may follow).
If you have followed your process regarding warnings, and the continuing behaviour appears significant enough to consider dismissal, review the employment agreement and the notice provisions. Dismissal should only be considered where it would be considered a reasonable response to the behaviour by a fair and reasonable employer in the circumstances.
Arrange a meeting, advising the employee that you wish to discuss the continuing unsatisfactory behaviour. Advise that dismissal is possible. Advise the employee of their right to have a support person present.
Outline your continuing issues, and listen to and consider any response. Be prepared to take a break to consider the response. If you believe the response is unsatisfactory, outline your reasons to the employee. If you cannot reach agreement, give notice of termination in terms no less favourable than the employment agreement.
Confirm the outcome in writing to the employee.

Also read: What you need to know about: Performance Management

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