When you have a staff member who is under performing in their role, it can place undue stress on other employees, create a toxic environment and cause disruption to the practice.

This blog will guide you through 4 steps on how to implement systems and processes to manage poor staff performance and how you can avoid having to face any legal ramifications as result of employees claiming unfair and unreasonable disciplinary action.

Employees do have the legal right to challenge the way they are treated in relation to performance issues, even during their probationary period. This is even more reason for practices to develop a legally effective performance management process and have relevant policies and procedures in place to manage your employees in a way that will minimise your legal risks as an employer.

Follow the steps below on how you can manage employees in your practice to minimise your legal risks.

1. Develop a Performance Management process
   The ultimate aim of performance management is to ensure the ongoing economic viability of the company by creating a workforce of individuals who are highly motivated and who constantly deliver high quality outcomes.
    
   Performance reviews provide an opportunity to identify any needs or concerns that employees may have with regard to their performance objectives, development needs and/or aspirations and management support and resourcing.
    
   When your practice has proper policies and processes in place for dealing with performance issues, you are better able to ensure managers follow processes that will protect you from legal action. Make sure your performance management policies and processes are understood and implemented by the Practice Manager.
2. How to Develop a Performance Management process to minimise your legal risk
   To manage performance issues fairly and reasonably:
   • Define the performance issue carefully – make sure that it can be objectively proven. For example, it is difficult to prove an employee’s “attitude problem”. It will be easier to prove disrespectful and ineffective communications with co-workers and managers. Consider whether the issue sufficiently related to the key requirements of the employee’s job.
   • Recognise and make reasonable allowance for the contribution of factors that are not related to the employee’s conduct or capacity, e.g. market downturn, poor health of employee.
   • You need to clearly outline to the employee the goals to be achieved and how achievement will be demonstrated and measured. Include a warning of the disciplinary consequences, including possible dismissal, if the employee does not achieve the goals.
   • Give the employee reasonable assistance and reasonable time to overcome the issue.
   • Be genuine in efforts to see the employee overcome the issue. It should not simply be a process of a ‘tick-and-flick’ performance management process. Ensure the plan The Fair Work Commission is very good at identifying ‘tick and flick’ processes and performance management situations where dismissal is a pre-determined outcome.
   • If the manager believes there are grounds to dismiss the employee because the employee has not satisfactorily overcome the issue, ask the employee to attend a meeting about their employment and invite them to bring a support person.
   • At the meeting, explain why you consider there are grounds for dismissal, referring to evidence as required, and give the employee an opportunity to respond.
   • After considering the response, determine whether to dismiss the employee. If a decision to dismiss is made, issue a written letter citing the performance reasons. Generally, a notice period will need to be given, or a payment in lieu of notice made (poor work performance will rarely justify summary dismissal).
   • Ensure that the above process has been formally documented.
3. How to limit the risk of liability of managing poor staff performance
   • Ensure that your Practice Manager keeps up to date with employment law. Agree on a training plan, and assess their knowledge at performance review time.
   • Advise your Practice Manager to review all employment contracts, and workplace policies and procedures regularly, particularly when legislation changes. Agree on a timetable and process for the review.
   • Ensure that all staff are provided with Position Descriptions. If you clearly explain the duties, responsibilities and key competencies of a role at the outset of employment you will have a proper basis to establish a performance management process.
   • Probationary employees are not exempt from the Fair Work Act unfair dismissal laws. The qualifying period for unfair dismissal, i.e. 6 months or 1 year for small businesses, applies for national system employers regardless of whether the employment contract provides for a probationary period.
   • Most unfair dismissal claims arise because the dismissed employee held a genuine grievance in relation to their treatment. If you take steps to address the grievance prior to the employee leaving the business, you are better placed to avoid liability. Establish clear and practical processes for employees to resolve grievances about employment matters and encourage employees who are aggrieved about performance management issues to access these procedures.
   • Workplace Bullying Policies. A significant proportion of workplace bullying complaints arise when Practice Managers or Principals are dealing with employees about performance issues. To ensure these complaints do not derail reasonable and genuine performance management, you need an effective workplace bullying policy. This will allow bullying complaints to be quickly resolved
   • Ensure that your Practice Manager is trained in workplace investigations.
   • Undertake an HR audit to ensure legal compliance while measuring the effectiveness of HR programs. Ensure any issues are prioritised and actioned.
   • Encourage your Practice Manager to seek external assistance when required. Sometimes issues can be complex and risks can be minimised if external legal assistance is provided.

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The Author

Bernadette Beach

Bernadette Beach is the Director of Indigo Medical Consulting Services; specialising in business solutions, recruitment/HR and healthcare marketing. Bernadette has worked with specialists, surgeons and other healthcare professionals for over 20 years providing business and marketing expertise.