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.
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