Tips and tricks to help you with some difficult conversations.
One of the most difficult things that any employer has to deal with is what to do when an employee doesn’t live up to expectations.
It isn’t an easy conversation to have with someone and it is a conversation where you really need to know what you are doing to avoid making a costly mistake. In this regard, ensuring that you have the right performance management processes in place and that the conversation is supported by a base of evidence are extremely important.
Having said that, if the person has misbehaved or is just not performing satisfactorily, it is a conversation that has to be had. Such problems rarely go away of their own volition and they have a habit of repeating themselves.
So here are a few tips on things that you can do to make those conversations as safe and effective as possible.
Be clear about expectations
With any new employee, ensure that, from day one, they are clear about the role that they are to perform and the outcomes that they are expected to deliver as well as behavioural requirements (ie how we deal respectfully with each other here).
This is where some of the foundation HR tools like position descriptions and policy statements on conduct and performance management processes and disciplinary and grievance procedures are very useful in that they provide evidence of your communication of requirements and the processes involved.
If it isn’t working, address it
Employees deserve to be given the support, opportunity and reasonable time to be successful in their roles and in the business.
At the same time, they need to be held accountable for delivering the return on investment that you as their employer are making in them ie you hired them to do a job… well.
If the employee is not meeting expectations after having been given reasonable opportunity, support and time, you need to be starting the conversation about the consequences if the employee continues to underperform or misbehave. Make sure to set a reasonable timeframe for the employee to be able to achieve the desired improvements.
Confirm those expectations, the consequences of not meeting them and the timeframe in writing, so the employee has clear direction on what they need to do and so there is evidence the employee has been advised of all those things.
If something serious happens, make haste with caution
This might be that there is a report of a potentially serious incident of misbehaviour or underperformance which may have a serious impact on the business and/or on people.
You need to respond quickly but you need to be careful to follow the right steps so that you don’t create a problem procedurally.
Check your Disciplinary Procedure and any other relevant process to make sure you understand the steps and can follow them. And then follow them to the letter.
Put up the three tents
When issues of underperformance and misconduct arise, especially when they have the potential to result in termination of employment, you need to ensure that the actions that you take are fair, substantively and procedurally.
Substantive fairness has to do with the action taken being a logical and fair response to the realities of what happened which we think is captured in our three tents:
- CON-tent: what actually happened on the balance of probabilities once you have looked at all of the evidence;
- IN-tent: were the (in)actions of concern from the employee deliberate and intended to cause the problems that they did or were there extenuating circumstances or was the action inconsistent with the employee’s history with you, how remorseful is the employee, etc;
- EX-tent: what was the impact that the employee’s (in) actions had on the business and/or people and are these capable of being remedied by means other than serious disciplinary action. On the other hand, what would be an appropriate sanction for the employee having regard to their personal circumstances.
Have five-step critical conversations
From a procedural fairness perspective, it is critical that you can demonstrate that the employee has been given the opportunity to respond to both the issues of concern and the action that you propose to take. So here is our five-step conversation that addresses these requirements:
- Advise the employee of the issues and invite them to provide an explanation or anything that they would like to put forward in their defence;
- Consider what the employee has to say and determine whether you can proceed without the need for further investigations (eg if the employee raises things or nominates witnesses of which you were unaware);
- If you can proceed, advise the employee of your conclusions following what they have had to say and what action you propose to take as a result (eg the evidence does not support what you have put to me and so I have concluded that it is appropriate to terminate your services) inviting them to provide you with reasons as to why you should not take that action;
- Consider what the employee has to say and determine whether that makes any difference to your decision on what action you should take;
- Advise the employee of your decision and confirm that in writing.
Conclusion
These are some tips and tricks that we have learned over the years.
They are not legal advice and they certainly don’t cover everything that is involved in managing difficult performance and behaviour situations from a legal perspective. Having said that, we have found the three tents and five-step models to work well in practice.
Our final piece of advice – ensure that you have access to competent HR advice whether through an industry or employer association or employment lawyers or consultancies like Ridgeline HR.
Peter Maguire is the owner and practice leader of Ridgeline HR, an award winning HRM consulting practice which he founded in 2000. Peter is an acknowledged expert in workplace relations compliance and also a high-performance leadership coach with over 40 years’ experience in HRM. Ridgeline HR’s byline is Helping PEOPLE in BUSINESS and that is essentially what Peter does – help business people with their people business.
