When an employee is accused of not meeting their employer’s expectations, it often results in a lot of stress and anxiety for the both the employee and employer.  It’s no surprise that employees and employers both frequently seek advice from us about their rights and options when this occurs.  It can be very difficult to know what to do, and having good support may take some of the pressure off.

The first step an employee or employer needs to take is to check their Employment Agreement and workplace policies to see how allegations of poor performance should be dealt with.  Some workplaces have a set process to deal with performance issues and this must be followed.

If your workplace does not have any policies, it might be useful to talk to your employee or employer about exactly what the expectations are and how things can be improved.

You also need to identify what it is that the employee needs to do to come up to the expected standard, and what support the employer is willing to provide (extra training, resources etc).

In most instances employers would prefer to support the employee to improve, rather than to replace the employee.  It can be more costly for employers to recruit a new person, and expend time and resources on training them in the role, rather than bringing an existing employee up to their expectations.  Employees should therefore be encouraged to have open discussions with their employers about any performance issues, so they can demonstrate that they are willing to positively move towards improvement.

In order to avoid a situation getting to the point where the parties feel that they want to end their employment relationship parties must engage with each other early on.  This will allow open and productive communication while the parties are still on good terms.

If the issues remain unresolved, then an employer might decide to move to a formal process, often referred to as a Performance Improvement Plan (“PIP”).  If the employee’s performance does not come up to scratch by an expected time, the employer might consider taking disciplinary action (for instance, formal warnings, demotion or even dismissal).

Sometimes employees feel bullied or harassed during this process, especially if handled poorly.  A poorly handled allegation around the employee’s performance may in turn lead to a personal grievance.   Employers must ensure the process is fair, and their expectations are reasonable. The Employment Relations Act 2000 requires employees and employers to deal with each other in “good faith”.

What does good faith mean?

Parties must not act in a misleading or deceptive way in their dealings with each other.  The employer must also discuss with the employee before making a decision which may negatively impact on the employee’s job.  The employer must give the employee an opportunity to comment and get advice and to have a support person for assistance with responses and meetings. Good faith also requires the parties treat each other fairly including:

  • Being honest and open,
  • Raising any issues early,
  • Being constructive and positive towards each other,
  • Being open minded about issues and particular solutions, and
  • Treating each other with respect.

Employees have a duty to raise any issues they are having at work early, so that the parties can work together to resolve the issues.

Alan Knowsley
Employment Lawyer