Performance management vs disciplinary issues

You are aware of an issue with an employee but are unsure how to deal with it – is it a performance issue or a disciplinary issue? Does it even matter?

Yes, it matters. There are two distinct processes – one for managing poor performance and one for dealing with bad behaviour – and it is important to start off down the right path.

A gym manager who lost his job after returning from holiday to find several complaints had been made against him has been awarded $6,000 compensation for unjustified dismissal.

The Employment Relations Authority (ERA) found his employer, Snap Fitness, was unfair in firing Mathew Milne as the complaints made were about performance, rather than serious misconduct.

Eight allegations against Mr Milne were raised, among them that Mr Milne had been rude to customers, to have failed to take seriously a number of complaints made about the safety of the gym and he was accused by another trainer of taking four hour lunch breaks. On this count the ERA found no basis for the allegation, noting the trainer who made the complaint “clearly did not get on” with Mr Milne.

Korey Gibson, Mr Milne’s boss, said in a letter to Mr Milne, “as a manager there is a high level of trust and confidence that is required: my trust and confidence in you to remain in the role has been seriously eroded.” Mr Gibson summarily dismissed Mr Milne for serious misconduct.

The ERA found that, with one possible exception, the accusations were “matters of performance, not matters of serious misconduct.”

Mr Milne was a young and inexperienced manager in a sole charge position. The ERA said Snap Fitness were unfair to Mr Milne and warnings or further training would have been the appropriate course of action rather than dismissal.

It is an employer’s obligation to try to resolve problems in good faith. In cases of poor performance, good faith means giving an employee a real opportunity to improve their performance and assisting them to do so. In cases of misconduct this means conducting a fair and full investigation and giving the employee the opportunity to be heard.

Your actual treatment of any given situation will depend upon the specific circumstances, your Code of Conduct and policies and procedures, and past practice. If you are in any doubt, specific employment advice should be sought. Early clarification can save significant cost down the line.

Chapman Employment Relations provides employment law and HR advice exclusively to employers.

Any questions regarding this column can be e-mailed to christine@chapmaner.co.nz

Health and Safety Reform Bill

Worksafe NZ

As you may have seen in the Media coverage the Health and Safety Reform Bill has been reported back to Parliament which has made some improvements and clarifications. The Health and Safety Reform Bill will replace the old Health and Safety Act and is part of a number of changes aimed at reducing New Zealand’s injury and death toll in the workplace which is far too high. The bill is likely to become law later this year.

While the changes are primarily driven by the need to reform high-accident-rate industries such as forestry,  mining and farms the Bill will effect every business, including small office and retail businesses so you need to assess your business for potential accident-causing behaviour in your workplace. For example how many people stand on a chair to change a light bulb rather than using a set of steps?

Health and Safety is everyone’s responsibility – get it wrong and the penalties are significant.

Duty Holders

A Person Conducting a Business or Undertaking (PCBU) have health and safety duties toward their employees and to any other person affected by the work of the business or undertaking.  Duty holders’ obligations are limited to doing what’s in their ability to control and manage and is reasonably practicable. This makes job descriptions very important as a way to establish exactly what is in the duty holder’s ability to control and manage.

Directors, board members or partners, will now (as an officer of a PCBU) have a new duty to ensure that the PCBU complies with its duties. The bill expressly excludes those merely advising or making recommendations to an officer.

However, the responsibility sits with the PCBU, not all duty holders.

The duty holders are now personally liable and can faces fines up to several hundreds of thousands and even prison terms. This cannot be insured against.

In a shared workplace there may be more than one PCBU, the PCBUs are then required to consult, cooperate and coordinate with each other. The bill also clarifies how to do this.

A PCBU does not have a duty towards people who are at the workplace for an unlawful purpose.

Worker participation

The responsibilities of a PCBU have been clarified in the new Bill, under which a PCBU need to engage with the workers on health and safety matters.

Some flexibility has been added to ‘worker participation’ in health and safety matters in the workplace. Health and Safety Representatives and Committees are one way of meeting the worker participation requirement. Smaller workplaces with less than 20 workers in low risk sectors will not be required to have a Health and Safety Representative or Committee when requested by workers. All other businesses need to decide whether to elect a Representative and Committee when requested. If they are satisfied current worker participation practices meet the requirement of the new law they can decline the requirements.

Health and Safety Representatives will have the power to intervene if they see an unsafe situation with serious risk. There are limitations to and training requirements attached to their power.

Definition of a Workplace

The Bill defines a workplace as a place where ‘work is carried out, including anywhere a worker goes or is likely to be while at work’.

Some areas might not be workplaces all of the time. Farmers especially had some concern regarding allowing public to enter their land, but it has now been clarified that a workplace is somewhere where work is customarily carried out, including any place a worker goes or is likely to be while at work. So, farm buildings and immediate surrounds are under the duty of the farmer as a PCBU, other parts of the farm (like paddocks) are only workplaces while work is being carried out in that part. So, the farmer does not have a duty towards recreational users coming onto farm land unless work is carried out in that part of the farm at the time. The farm family home is also excluded from the farm workplace.

Volunteers

The bill will continue to distinguish between casual volunteers and volunteer workers, where casuals health and safety will be covered but the PCBU’s duty to any other person affected by the work of the business or undertaking but not to the extent of employees. Volunteer workers will have the same protection as any other worker.  If it’s purely a volunteer organisation with no employees it is not a PCBU so the Bill won’t apply. If the organisation has employees it’s a PCBU and the Bill applies.

The following would be classed as casual volunteering not volunteer workers: participation in fundraising activity, assistance with sports or recreations for an educational institute or club, assisting with activities for an educational institution outside the premises of the educational institution, providing care for another person in the volunteer’s home.

For further information, visit:

Worksafe New Zealand

Ministry of Business, Innovation & Employment

Legislation Updates

Health & Safety Reform Bill delay:

The proposed law changes to workplace health and safety have been delayed for at least two months because of concerns within the National Party caucus about its effect on small businesses and farmers.

The main areas being reconsidered are believed to be:

  • Exemptions for businesses with 20 staff or less from the requirement to have health and safety representative on a worker’s request.
  • Whether types of businesses can be deemed exempt from the law at any time by regulation, as the bill allows.
This week in the media, adding corporate manslaughter to the Bill is also being raised by Amy Adams, Justice Minister.

Parental Leave and Employment Protection – Rate of Parental Leave Payment

These adjustments to the Parental Leave and Employment Protection Act 1987 (the Act) come into force on 1 July 2015

The rate of parental leave payment payable to an employee is the lesser of —

  • $504.10 per week (as from 1 July 2014); and
  • the greater of — 100% of the employee’s ordinary weekly pay before the commencement of the parental leave; and 100% of the employee’s average weekly earnings.

The rate of parental leave payment payable to a self-employed person is the lesser of —

  • $504.10 per week (as from 1 July 2014); and
  • the greater of — 100% of the self-employed person’s average weekly earnings; and the minimum amount set under section 71OA of the Act.

The amount of $504.10 per week must be adjusted by 1 July 2015 by any percentage movement upwards in average ordinary time weekly earnings. These regulations adjust the amount to $516.85.

Vulnerable Children – Requirements for Safety Checks of Children’s Workers

These regulations, which come into force on 1 July 2015, are made under the Vulnerable Children Act 2014 and set out the requirements for safety checks of children’s workers.

The requirements for the first safety check of a children’s worker are:

  • a full identity check (which requires confirmation of identity either by using an electronic credential or by producing a primary and secondary identity document); and
  • a Police vet; and
  • the gathering of other information (less information is required to be gathered if the children’s worker is an existing employee or contractor); and
  • a risk assessment.

The requirements for a subsequent safety check of a children’s worker that is carried out within 3 years after a previous safety check are:

  • an identity check (which, if a person’s name differs from that on a primary or secondary document produced to confirm identity for a first safety check, requires a supporting name change document to be produced); and
  • a Police vet; and
  • the seeking of information from any relevant professional organisation or licensing or registration authority; and
  • a risk assessment.

Source: Westlaw NZ/Brookers online

Employer Win – Restructuring Valid

Employment news kindly provided by Chapman ER

A top coach made redundant from Swimming New Zealand after a poor performance at the Commonwealth Games has lost his claim of unjustifiable dismissal.

Funding of Swimming New Zealand’s High Performance programme is dependent on success measured by Key Performance Indicators (KPIs). The most transparent of those measures is podium success at pinnacle events around the world by the New Zealand swimming team. If the high performance programme is unsuccessful then funding is reduced and allocated to other more successful sports.

The national sports body restructured its high performance programme following poor performance at the Glasgow Commonwealth Games. In the lead-up to the Games, swimmers targeted for success at Glasgow were achieving slower times than previous personal bests.

David Lyles was employed as National High Performance Centre coach (Auckland) in 2013 however was made redundant after a comprehensive review of the New Zealand team’s poor performance.

The review looked at coaching structures and this led to the creation of new positions including a new national head coach role. This new position called for world class coaching capability to technically lead the national programme and high performance culture.

After consultation the restructure went ahead, and Mr Lyles unsuccessfully applied for the National Head Coach role.

Mr Lyles subsequently made a claim to the Authority that his dismissal was flawed, and that the newly created role of national head coach was effectively the same as his existing role.

However, ERA member Eleanor Robinson found the national head coach position was insufficiently similar for him to be automatically redeployed to it.

Legislation prohibits dealing with poor performance through restructuring and Robinson said there was no dispute over Lyles’ performance in his former role. Although the poor results of the high performance programme were the key trigger for the restructure Lyles himself did not argue the reason for the restructure. Mr Lyles agreed with the recommendation in a 2014 review to consolidate the two High Performance Centre Coach roles and create a new National Head Coach role – making Mr Lyles’s position redundant.

The ERA found the decision to disestablish Mr Lyles’ position was a genuine business decision.

Robinson found Swimming New Zealand provided him with all information necessary to provide feedback, and that Lyles had sufficient opportunity to comment on it before a decision was made.

The redundancy procedure, including the selection process for the new role, was found to be conducted fairly. Mr Lyles’ claims were dismissed.

This case highlights the benefits of taking the time to prepare well, of seeking advice on your intended process and of following the provisions of your Employment Agreements and policies. These measures will significantly reduce risks associated with handling the relatively sensitive situation of restructuring and redundancies.

10 Tips for Dealing with Workplace Gossip

This article is sourced from Chapman ER

Unlike this classic joke, gossip can be anything but funny when it happens in your workplace. It can undermine morale and cause loss of productivity. Regardless of the nature of the gossip, the following tips can help deal with the issue. The first few suggestions apply to leadership of the organization, while the rest apply to all.

1: Set the example and tone
If you’re a leader or manager who wants to reduce or eliminate workplace gossip, take a look at yourself first. Are you gossiping about your own boss or peers? Are you speculating idly or complaining about future company policy? If so, don’t be surprised if your subordinates do the same thing. Set the right tone and those subordinates are more likely to follow.

2: Be open to hearing issues
If your subordinates sense that you’re unwilling to hear about and discuss workplace issues, gossip may result. If they believe they can’t talk to you, they will merely complain to each other. If they can’t get clear answers to questions, they will speculate among themselves.

3: Keep communication lines open
Be willing not only to listen to issues from subordinates, but to divulge information as well. In fact, being in front of a problem — that is, getting information to your staff about a problem first — is often better than reacting to inquiries from them. Your staff will appreciate this transparency and may gossip and speculate less as a result.

4: Don’t shoot the messenger
One certain way to fuel gossip, albeit unintentionally, is to shoot the messenger. If staff have concerns about a particular issue, they might want you to address it. However, if you reprimand or take other negative action against the person who raises the issue, you will kill any thoughts your staff might have of doing the same thing in the future. As a result, they will simply complain among themselves, causing a vicious circle of discontent and gossip.

5: Confront the gossiper
If people who gossip about you believe that doing so brings no negative consequences, they have no incentive to stop gossiping. Conversely, if they know that you’re on to what they’re doing –and in particular, if you make your feelings known to them — you increase the chances that the gossip about you will stop. Not only will the gossipers get the message, but so will others who might be tempted to join in and gossip about you.

6: Deal with the issue not with the person
When you do confront someone who has been gossiping, you will come across far more professionally if you focus on the issue and behavior rather than on the person. For example, instead of saying, “You are a bad person for gossiping about me,” consider saying, “I am concerned about the gossiping, and I want it to stop.” This way of reacting makes you look better and more professional to anyone else who might hear about it, a fact that can help you politically.

7: Refuse to be drawn in
A good way of stopping gossip and rumors is simply to refuse to be drawn in. In other words, refuse to respond to comments about the absent person with more comments about that person. Even better, try to change the subject subtly. For example, the next time someone gossips about your co-worker Tom, try bringing up something about Tom’s child, perhaps with regard to something that child has in common with your own child. Then, begin talking about the children and their common activity rather than about Tom. Most likely, the group will not even notice that the gossip has changed to something else.

8: Verify via questions
If you feel you can’t avoid the gossip and you can’t change the subject, at least try to verify the information you’re hearing. Ask about details about places and times. Often, like the urban legends that permeate email, rumors and gossip are only general and have no specifics. By asking about details, you are subtly forcing the issue because the person who can’t provide any details is tacitly acknowledging the weakness and lack of credibility of that information. Then, when the person fails to provide these details, you can just say, “Wow, all of it sounds pretty vague. Are you sure about it?” You’re making it clear that you have doubts about what you are hearing without attacking the person who is telling you.

9: Focus on solutions not problems
Much gossip arises when a group of workers is concerned about a particular problem. If you sense that the conversation in your group is headed toward complaining or gossiping, remember the old adage “It is better to light a single candle than to curse the darkness.” Instead of joining in with the complaining, simply ask the group what anyone thinks might be a solution. The exercise of focusing on solutions will take away from the urge to gossip.

10: Avoid self-righteousness
If you try any of these techniques, do it in a low-key manner. Don’t announce or make a big deal about what you’re doing. Above all, avoid being condescending or lecturing people about the evils of gossip. Doing so will only alienate your co-workers. By being casual about dealing with the gossip, you remove the problem of creating a new problem for yourself.

Source: techrepublic.com

$168k for Privacy Breach

From Chapman Employment Relations latest newsletter:

The Human Rights Tribunal’s decision that NZCU Bayside breached the privacy of their previous employee Karen Hammond was not a surprise. The level of compensation however was staggering. The awarding of $168k compensation, surpassed the previous highest award by an astonishing $128k.

The company admitted to the breach, but their actions were extraordinary. Hammond had posted on her Facebook page a photo of a cake she had baked, iced with the words ‘NZCU F*** YOU’. Only people she had accepted as ‘Facebook friends’ could access the page. NZCU Bayside obtained through coercion, a screen shot of the photo and emailed it to four local recruitment agencies, along with contemporaneous phone calls warning against employing Hammond.

Additionally, the Chief Executive sent an email to staff disclosing information about Hammond. The company also placed severe pressure on Hammond’s new employer to terminate her employment, including stating that continuing to employ her would result in significant financial loss.

Hammond resigned from her new job on the basis it had become untenable for the company to continue with her there. She remained unemployed for 10 months until obtaining a position outside her chosen sector, and in a position considerably below her skill level. Hammond felt unable to apply for any positions that used recruitment agencies for fear of what they would say to prospective employers.

The tribunal determined the company was less than honest in their evidence. The evidence of two of their key witnesses was described as being defensive and in disarray, and the consequences of the breach downplayed by the company. Members of the management team also contradicted each other. In contrast the tribunal found Hammond and her witnesses to ‘be sincere and genuine individuals and their evidence unrehearsed, direct and frank.’ Although the Chief Executive did provide an apology, the tribunal said the apology was ‘delivered without any detectable note of sincerity.’

All of these factors were taken into account when the tribunal considered remedies. The award was made up of $38,350 in lost income, just over $15,500 for legal expenses, $16,177 for the difference in wages from the job she was forced to resign from and her new job, and $98,000 damages for humiliation, loss of dignity and injury to feelings. The tribunal described the breach as at the serious end of the spectrum, with the company’s responses at the hearing as contributing, and hence justifying the large damages award.

Chapman ER Top Picks for Must Have Interview Questions

Targeted interview questions tell you about the person behind the CV. They should help reveal the candidates true personality, strengths, weaknesses, knowledge, skills and abilities.

You should always include questions that are specific to the position, however below are 11 suggestions that can be used across a variety of industries and position types. 

1. From what you know so far of the role and our company, tell me how you feel you’d make a contribution.

This question will help you find out how much the candidate has prepared for the interview and how interested they really are. Candidates who are genuinely interested will take this opportunity to shine and demonstrate that they have done their homework. Ill prepared and possibly less interested candidates will stumble and try to put some generic response together.

2. If you could start your career over again, what would you do differently?

While no one likes to dwell on past regrets, this can be a good question to ask.
Asking a candidate to explain the major decisions they have made, highlighting the positive and negative, reveals the person’s ability to make calculated decisions based on past professional and personal experiences.
It also lets candidates share their vision for the future and their ambitions.

3. If I was to speak to your referee (last supervisor/manager) and ask which area of your work needs the most improvement, what will I learn?

The candidate will feel compelled to answer this one honestly as they know they are likely to get caught out at reference check stage. It is the same as asking ‘what is your biggest weakness,’ but phrased in an unexpected way.

4. Describe the best boss you have ever reported to.

Hopefully their answers will help paint a picture of their past relationships. It highlights the work types and personalities that they best fit in with. You should also be able to gain greater insights into the candidate’s communication skills, work style and potential cultural fit. Follow up with questions like “what made the relationship click.”

5. What type of management style do you prefer?

This can be as a follow up question to the one above. Do they prefer autonomy, handholding, or are they inspired by a mutual drive to achieve goals?

6. Tell me about what motivates you. 

Ask question 6 & 7 in sequence to better understand the candidate’s motivations. If their answer to 6 reflects your company vision and culture, then you could have a winner.

7. What frustrates you?

Does the candidate answer by discussing minor irritations and nit picking situations – or ways that they will their work ethic and attitude fit in your work environment?

8. Tell me about the toughest work situation you ever been in.

This will give you an insight into how the person reacts to work pressures and their problem solving skills. Follow their answer through so that they explain their involvement and how they came to a positive outcome.

9. Tell me about your experience in a similar role to this one.

This is your opportunity to not only find out whether the candidate has the skills and experience you need, but to openly discuss your expectations of the role. Make sure you probe with further questions if the candidate is not clear about their past experience.

10. What would have to happen or not happen for you to realise you had made a mistake in taking this job if it was offered to you? 

This will help you see what their expectations of the role and your company are.

11. Do you have any health issues we should be aware of where you need assistance to help you perform to your best?

Every applicant should be asked this question.

Paid Parental Leave increase

Paid parental leave for a baby expected or born, or for a child adopted, on or after 1 April 2015 can now be taken for up to a maximum of 16 weeks (previously 14 weeks). This means if baby is expected before 1 April 2015, but arrives on or after 1 April 2015, parent(s) are entitled to the extra two weeks. If baby is expected on or after 1 April 2015 but arrives before 1 April 2015, parent(s) are entitled to the extra two weeks.

Updated forms for self-employed, employees and employers will be available on IRD’s website from 18 December 2014.

Employment Law Changes

Significant changes took place to employment law in New Zealand on the 6th March 2015 when the Employment Relations Amendment Act 2014 will come into effect. Here is a brief summary of the main changes:

  • Flexible work: the right to request flexible working arrangements will be extended to all employees and it will be easier to request by removing some limits and requirements.
  • Rest and meal breaks: these changes recognise the need for breaks to be practical for each workplace and the new provisions provide more flexibility. Employers and employees can’t contract out of the right to rest and meal breaks. An employee has to get a break or a compensatory measure.
  • Continuity of employment (for specified employees): the changes are mostly in regards to transferring employees’ entitlement and information to a new employer.
  • Good faith: this change amends the good faith provisions and clarifies what information employees are entitled to during restructures or other situations where their continued employment is at risk. An employer must give the effected employee relevant confidential information about themselves, but not about another employee (if the information legally must stay confidential, or there is good reason to keep the information confidential) .
  • Collective bargaining: key changes are that the parties are no longer required to reach a collective agreement, it removes the 30-day rule that gives non-union members who are new employees the terms and conditions from the collective agreement, allows a proportionate pay reduction as a response to partial strikes, advance written notice will be required for any proposed strikes and lockouts in all sectors
  • Employment Relations Authority: changes introduce requirements for when and how the Authority must give determinations.

Further information is available from Ministry of Business, Innovation & Employment

Employment Matters – Absences

Employment matters with thanks to Chapman Employment Relations

An employee had applied for annual leave to go overseas, but I turned it down because I already have two staff off at that time. He has come back to me and said he is going anyway. I am really angry about his attitude and I really can’t be without another staff member at this time. What can I do?

If you have genuine business reasons for turning down an employee’s annual leave application, an employer has the right to do this. The employee does not have the right to go when the employer has reasonably refused the request.

It is important you notify the employee again that the leave has not been approved and the consequences of him going, i.e. you may dismiss him. Put this in writing to him.

If he still takes the leave you will need to follow a disciplinary process before potentially reaching the conclusion that you will dismiss him for being absent without authority.

 

My employee didn’t turn up to work for three days, he didn’t call in sick or anything, and then just waltzed in and said nothing. The gossip on the floor is that he went pig hunting. What can I do about it?

Any time someone is absent from work and you haven’t heard from them, you need to try to contact them to found out why they are not at work and when they will be back. If they don’t respond to your calls and then subsequently show up at work, the first step is to ask them why they were absent and hadn’t notified you. If their answer is not acceptable to you (or you don’t believe it), you have the option of initiating a disciplinary investigation, which may result in giving the employee a warning or dismissing him, depending on the circumstances. Before determining the outcome of the investigation you need to follow fair process, and the outcome must be ‘what a fair and reasonable employer could have done in the circumstances.’