Managing Performance, Conduct and Productivity Victorian Public Service

Transcription

1 Managing Performance, Conduct and Productivity Victorian Public Service Guidelines for Managers and Supervisors of Victorian Public Service Employees

2 Contents Part 1: Introduction...4 Outline of Guidelines...5 Part 2: Overview: Sources of legal obligation and key concepts...6 Sources of legal obligations...6 Some key concepts...7 Part 3: Public Administration Act overview...10 Public Sector Values...10 Any binding Code of Conduct...12 Public Sector Employment Principles...13 Public Sector Standards Commissioner...13 Summary...15 Part 4: Managing unsatisfactory performance...16 What is unsatisfactory performance?...17 What are the performance standards?...17 Overview of process for managing unsatisfactory performance...17 Additional support EAP, training & resources...23 Role of the decision-maker...24 Some extra guidelines...25 Part 5: Managing conduct...27 What is misconduct?...27 What is serious misconduct?...28 How to assess conduct: misconduct vs serious misconduct...29 What are the VPS conduct/behaviour standards?...30 Overview of process for managing misconduct and serious misconduct...31 Additional support EAP, training & resources...36 Role of the decision-maker and investigating officer...36 Some extra guidelines...37 Part 6: Disputes and rights of review...39 Disputes and grievances under the VPS Workplace Determination...39 Review of action...40 Part 7: Productivity...41 Remove barriers to productivity...41 Provide training/support to managers to increase productivity...42 Part 8: Risks, compliance and claims...43 Unfair dismissal claims...43 General protections applications under the FW Act Unlawful termination of employment claims...52 Equal opportunity claims...53 Common law claims...55 Claims under the Australian Consumer Law and Fair Trading Act 2012 (Vic)...57 Part 9: Training Part 10: Key contacts...60 Annexure A Unsatisfactory work performance checklist...61 Annexure B Misconduct checklist...69

3 Part 1: Introduction The ability to effectively manage employee performance and conduct is a challenging, but vital, aspect of every employer s role. Unfortunately, however, poor performance and conduct issues are frequently mismanaged. They require employers to have difficult conversations with their employees while complying with increasingly complex laws on handling employee performance and conduct, and with disgruntled employees taking every advantage of the protections they are afforded under the Fair Work Act 2009 (Cth) (FW Act). It s therefore critical for any employer to ensure that managers are equipped with the appropriate resources, training and skills to effectively manage issues of employee performance and conduct as and when they arise. This is particularly important for the Victorian Public Service (VPS), which is regulated by a wide range of statutes, departmental instruments and governmental policies. These additional forms of regulation provide a further layer of complexity and potential legal exposure for VPS employers. VPS employers must therefore be aware of the various sources of regulation that impact on the employment of VPS employees so that they can manage them lawfully and minimise or avoid the likelihood of any liability arising. In addition to minimising exposure to legal claims, effective performance and conduct management can reduce the risk of a variety of other negative consequences arising for both individual employees and the workplace more broadly. For example, maximising productivity in the workplace is fast becoming a significant focus of many organisations, and appropriate performance and conduct management may help this by: avoiding the need for dismissal and recruitment (which can be costly and time-consuming); enhancing performance and conduct that would otherwise result in inferior products/services (which may give rise to adverse publicity or other liabilities); and increasing morale, teamwork and productivity in general. provide their managers with appropriate training and resources so they can efficiently and effectively manage productivity through performance and conduct management processes; facilitate, and remove barriers to, a manager s ability to achieve these goals; and seek early strategic advice. Outline of Guidelines These Guidelines focus primarily on managing performance and conduct, and increasing productivity, within the VPS. They are designed to provide a broad overview of the different approaches and processes for managers to use when managing performance and/or conduct issues, and to highlight the various risks that employers are exposed to if they do not effectively manage such processes. They contain: an overview of the process for managing unsatisfactory performance under the Victorian Public Service Workplace Determination 2012 (VPS Workplace Determination) 1 ; an overview of the processes for managing misconduct and serious misconduct under the VPS Workplace Determination; general tips and guidelines for maximising productivity in an increasingly complex legal and political environment; and an overview of the risks, compliance and potential claims that can arise when employee performance and conduct is mismanaged. These Guidelines are intended to provide general information, practical tips and checklists to assist employers when managing performance, conduct and productivity issues in the VPS workplace. It is important to note, however, that the contents of these Guidelines do not constitute legal advice and should not be relied upon as a substitute for formal legal advice. To increase productivity and minimise the likelihood of successful claims being made against them, at a minimum, employers must: understand their obligations to employees regarding managing performance and conduct issues; 4 1 Note: The VPS Workplace Determination has a nominal expiry date of 31 December

4 Part 2: Overview: Sources of Legal Obligation and Key Concepts In this Part of the Guidelines, we outline the various sources of legal obligations relevant to VPS employers when managing employee performance and/or conduct, as well as some key concepts that VPS employers need to be familiar with. Sources of legal obligations Generally speaking a VPS employer should always have regard to its rights and obligations under the following instruments when managing the performance and/or conduct of a VPS employee, particularly if the process results in dismissal: 1. The unfair dismissal provisions contained in the FW Act; 2. Legislative minimum terms and conditions of employment under the FW Act, or under Victorian laws such as the Long Service Leave Act 1992 (Vic); 3. Public sector and public administration legislation, such as the Public Administration Act 2004 (Vic) (PA Act) and the Public Administration (Review of Actions) Regulations 2005 (PA Regulations); 4. Victorian workers compensation legislation, including the Accident Compensation Act 1985 (Vic) and the Workers Compensation Act 1958 (Vic), the Occupational Health and Safety Act 2004 (Vic), Commonwealth and Victorian equal opportunity legislation, and the Australian Consumer Law and Fair Trading Act 2012 (Vic); 5. Industrial instruments, including the VPS Workplace Determination or other relevant enterprise agreements; and 6. The particular employee s contract of employment, whether oral, in writing, or both, including any contractually binding policies such as the Workplace Relations Policy or the Code of Conduct for Victorian Public Sector Employees (VPS Code of Conduct), or any other binding code. 7. Although employer policies may not be legally binding, depending on the content of applicable agreements, employers should comply with their own policies, procedures and particularly authorization commitments. It is critical in each case that the obligations in each one of the abovementioned instruments are checked and complied with when managing an employee s performance and conduct. Some key concepts (a) Victorian Public Service / Victorian Public Sector As noted above, these Guidelines focus primarily on managing performance, conduct and productivity issues within the VPS. The Victorian Public Service (VPS) is part of the Victorian public sector. The public sector also includes public entities. Departments Victorian Public Service While most of these Guidelines will be relevant for the broader public sector, it will be important to check whether any specific enterprise agreements, terms and conditions of employment and applicable policies are consistent with the information provided here. Throughout the Guidelines we raise specific instances where this may be the case. Following a restructure of the Victorian Government Departments that was announced in April 2013, the VPS now includes the following departments: Department of State Development, Business and Innovation; Department of Education and Early Childhood Development; Department of Health; Department of Human Services; Department of Justice; Authorities & Offices Victorian Public Sector Public Entities (eg. Government Schools, Public Health Care Services, Police & Emergency Services) 6 7

5 Department of Premier and Cabinet; Department of Environment and Primary Industries; Department of Transport, Planning and Local Infrastructure; and Department of Treasury and Finance. The VPS also consists of various administrative offices, such as the Environment Protection Authority, the Essential Services Commission and the Victorian Public Sector Commission ( VPSC ). Employees employed by these bodies are VPS employees. The Victorian public sector supports the government of the day by providing public services. Separate to the VPS, the public sector includes public entities such as hospitals, TAFE institutes and water authorities. Examples of public entities include the National Gallery of Victoria, VicRoads and the Country Fire Authority. The precise nature of an employer s obligations when managing performance and conduct (particularly if considering termination of employment) will depend on whether an organisation is part of the VPS or is a public entity. We recommend that you seek early advice when considering termination of employment to ensure that you are aware of, and comply with, all relevant sources of legal obligation. (b) 8 The employer : The Public Service Body Head A VPS employee is generally employed by the relevant Public Service Body Head. In a department, the Public Service Body Head is usually referred to as the Secretary. The PA Act also lists a small number of office-holders who have the functions of a Public Service Body Head in relation to their own staff. This includes the Chief Commissioner of Police and the Privacy Commissioner. Under the PA Act, Public Service Body Heads have all the rights, powers, authorities and duties of an employer in respect of VPS employees. They are therefore required to manage the performance and/or conduct of VPS employees. Section 18 of the PA Act permits the Public Service Body Head to delegate any of their functions under the PA Act. It is critical with statutory schemes like this to have proper delegations of power. For example, a termination of employment may be procedurally defective if someone other than the Public Service Body Head purports to terminate the employee s employment, unless that person has been properly delegated power, and has authority, to do so. For employees of public entities, the relevant employer may be the entity itself, the Chief Executive Officer (or their delegate) of that entity, or the relevant Minister. We recommend that you check any legislation that establishes the entity to confirm who the employing entity is and, if termination is a possible outcome, confirm who is authorised to terminate an employee s employment. If you are unsure, this is something you should seek advice on at an early stage to ensure the termination is lawful. Throughout these Guidelines, we have used both the term Public Service Body Head and the generic term manager to refer to a person who has the authority to terminate the employment of a VPS employee. (c) Reasons for termination of VPS Employees If the outcome of a performance or conduct management processes is a decision to terminate an employee s employment, VPS employers need to be aware of section 33 of the PA Act, which lists the reasons that the employment of a VPS employee may be terminated: on the grounds of redundancy; if the employee refuses a transfer to other duties; if the employee is found guilty of a criminal offence punishable by imprisonment (including an offence before that person became an employee); on the grounds of serious misconduct; on the grounds of inefficiency or incompetence in the discharge of their duties; if the employee has given false or misleading information in connection with their application for employment; or for any other reason consistent with that employee s contract of employment. If the proposed reasons for termination are not dealt with explicitly in the PA Act, the Public Service Body Head must take advice at this point. 9

6 Part 3: Public Administration Act overview VPS employees are provided with additional protection under the Public Administration Act (PA Act). This is significant because the PA Act requires employment processes, such as performance and conduct management procedures, to conform with: the public sector values; and any binding code of conduct; and the public sector employment principles; and standards issued by the Public Sector Standards Commissioner; and any other provision of the PA Act or the PA Regulations. Further, the PA Regulations may specifically establish procedures for dealing with allegations of unsatisfactory performance, misconduct, and serious misconduct and empower the imposition of penalties for misconduct or serious misconduct, which may include reduction in salary or classification (or both), suspension or dismissal. It is important that the relevant employer carefully comply with these requirements if they don t, this might not only amount to a breach of the PA Act and PA Regulations, but may also mean the process is of no effect, give the employee a right to lodge any one of a variety of claims (discussed further in Part 8: Risks, compliance and claims) and impact the productivity of the workplace more broadly. We look now at each of the PA Act requirements and some practical ways to comply with them. Public Sector Values The Public Sector Values are contained in section 7 of the PA Act. They apply both to the VPS and the broader public sector. Each value requires public officials to demonstrate certain behaviours to comply with the relevant value. Public Sector Value Responsiveness Integrity Impartiality Accountability Respect Leadership Human rights Behaviours required of Public Officials providing frank, impartial and timely advice to Government identifying and promoting best practice being honest, open and transparent in their dealings using powers responsibly reporting improper conduct reporting any real or apparent conflicts of interest making decisions and providing advice on merit and without bias, caprice, favouritism or selfinterest acting fairly by objectively considering all relevant facts and fair criteria accepting responsibility for their decisions and actions seeking to achieve best use of resources treating colleagues, other public officials and members of the Victorian community fairly and objectively demonstrate leadership by actively implementing, promoting and supporting the public sector values respect and promote the human rights set out in the Charter of Human Rights and Responsibilities by making decisions and providing advice consistent with human rights The VPS Code of Conduct is based on and aims to promote the public sector values. The VPS Code of Conduct is binding, and a contravention of it will constitute misconduct. Generally, compliance with the VPS Code of Conduct will result in compliance with the public sector values. However, it is important to remember that the public sector values require broad behaviours and do not prescribe a specific behaviour for every conceivable situation. Judgment 10 11

7 and initiative by managers must be in accordance with the VPS values and expected standards. Any binding Code of Conduct The VPS Code of Conduct is binding and applies to all VPS and public sector employees, so an employee s failure to act in accordance with it may give rise to performance and conduct management procedures. Correspondingly, a Public Service Body Head must act in conformity with the VPS Code of Conduct both during performance and conduct management processes and when terminating employment. Different provisions of the VPS Code of Conduct are likely to be relevant in different situations. However, significant provisions of the VPS Code of Conduct for a Public Service Body Head (in the context of managing employee performance and conduct issues) include: Public sector employees act honestly in the performance of their duties. They are open and transparent when making decisions. They give honest advice based on available facts and data. They ensure their advice is up to date. Public sector employees make decisions and provide advice that are free of prejudice and favouritism and based on sound judgment. Before making a decision or providing advice, public sector employees consider relevant information and the impact on the Government, community and other public sector employees. Their decisions are not affected by personal influences. Public sector employees deal with issues consistently, fairly and in a timely manner. Public sector employees use fair criteria, and consider all relevant information in dealing with issues. These standards reflect legal and community expectations of public sector employees. Further, a breach of the VPS Code of Conduct may in itself constitute misconduct, so it is vital that all VPS employees act in accordance with its terms in the wide range of employment situations they will face. Other codes of conduct may also apply, for example for certain professions 12 within the public sector or within certain public entities. These codes should also be followed, both generally and when considering whether a particular employee s performance or conduct requires management. Public Sector Employment Principles The Public Sector Employment Principles are contained in section 8 of the PA Act. They apply to the public sector (including the VPS) and require Public Sector Body Heads to establish employment processes that ensure that: employment decisions are based on merit; and public sector employees are treated fairly and reasonably; and equal employment opportunity is provided; and human rights as set out in the Charter of Human Rights and Responsibilities are upheld; and public sector employees have a reasonable avenue of redress against unfair and unreasonable treatment; and in the case of public service bodies, the development of a career in public service is fostered. In a termination of employment context, some of these principles are going to be more relevant than others (for example, employment decisions being based on merit). Public Sector Standards Commissioner The Public Sector Standards Commissioner and employers are required to promote the principles to employees. For example, the Commissioner issues standards and guidelines which reinforce the Public Sector Employment Principles and apply the principles of fair and reasonable treatment, merit in employment, equal employment opportunity and avenues for redress. Standards Standards issued by the Commissioner are binding minimum standards that apply to all public sector employees (including VPS employees). The standards commence with the fair and reasonable treatment principle, as it is central to understanding and applying the other employment principles. This principle is integral to any performance or conduct management process, particularly where dismissal is a potential outcome. 13

8 The relevant standards include that: managers must act within the boundaries of their authority; decision-making processes are to be fair, accessible and applied consistently in comparable circumstances; decision-making criteria are to be relevant, objective and readily available to the people subject to the decision; decisions and actions are to be free of bias and unlawful discrimination; and documentation is to be sufficiently clear and comprehensive to render decisions transparent and capable of effective review. Further standards include: employment decisions are to be based on the proper assessment of individuals work-related qualities, abilities and potential against the genuine requirements of the employment opportunity; and decisions and actions affecting employees are not to be influenced by irrelevant personal characteristics. A full copy of the Standards is available from the VPSC website 2. There is also a VPSC guide to Managing Poor Behaviour in the Workplace located on it. The guidelines contain useful information on things such as the relevant factors to consider before making a decision, the basis of that decision and the effect of that decision. A full copy of the guidelines is available on the VPSC website 3. Summary A Public Service Body Head must exercise their powers in conformity with the PA Act. This includes not only acting in accordance with the values and principles set out above, but also ensuring that they act independently and only terminate an employee s employment for the reasons permitted in the PA Act. The obligations of a Public Service Body Head under the PA Act are complex and require detailed attention to ensure they are satisfied. A failure to comply with procedural requirements may jeopardise the lawfulness of performance and conduct management processes, particularly where dismissal occurs (even if a valid reason to terminate exists). We suggest further advice be obtained on the full effect of the provisions of the PA Act and how to satisfy these requirements. Guidelines In addition, the Public Services Commissioner has issued non-binding guidelines to support the application of the Victorian Public Sector Employment Principles and the binding standards. Guidelines have been issued for the following employment principles: Fair and reasonable treatment; Reasonable avenue of redress; Equal employment opportunity; and Merit in employment

9 Part 4: Managing Unsatisfactory Performance The aim of performance management processes is to assist and support employees to improve their performance to a satisfactory standard. Effective management of unsatisfactory performance can significantly impact on the workplace in a positive way. For example, it will improve the standards of employee performance to ensure efficient and high quality work, and increase workplace morale, maximising productivity across the workplace more broadly. The performance management process often presents a challenge for many employers, as it requires managers to have difficult, and at times awkward, conversations with their employees. Employers must provide their managers with ample training and resources to ensure that they understand what is required of them when conducting a performance management process and feel confident in doing so. This Part of the Guidelines provides general guidance for employers on the process for managing unsatisfactory performance of VPS employees and covers: what is unsatisfactory performance; performance standards; an overview of the process for managing unsatisfactory performance under the VPS Workplace Determination; additional support EAP, training and resources; the role of the decision-maker; and some extra guidelines. While this Part draws on the procedures outlined in the Victorian Public Service Workplace Determination for managing the performance of VPS employees, it does not deal with Department-specific procedures and processes. We strongly recommend that employers obtain specialist advice on their substantive and procedural obligations in any specific circumstance of unsatisfactory performance management. What is unsatisfactory performance? Unlike misconduct, which is concerned with poor behaviour, unsatisfactory performance occurs when an employee fails to perform the agreed duties to the required performance standards. It includes, for example, where an employee is not meeting the required Key Performance Indicators (KPIs). Clause 18 of the VPS Workplace Determination specifically outlines that an employee s work performance is unsatisfactory if the employee fails to perform to the required standards or expectations of their role. What are the performance standards? The relevant performance standards will vary for different employees depending on their role and the Department employing them. The most relevant standards are set out in a number of instruments, including: the employee s job description; the VPS Workplace Determination (including the relevant classification descriptors for the employee s position); the PA Act; standard operating procedures, processes, business rules, authorisations, delegations, and work instructions; and applicable Department policies and guidelines. Please see Part 3: Public Administration Act overview for further explanation regarding these standards. Overview of process for managing unsatisfactory performance Where an employer believes a VPS employee s performance to be unsatisfactory, it must be managed in an efficient and comprehensive manner. From the outset, it is important to be aware that your process must be consistent with the public sector employment principles (PA Act, section 8), the standards issued by the Public Sector Standards Commissioner and any other relevant procedures and standards. In the checklist at Annexure A of these Guidelines, we outline the steps that an employer must take under the VPS Workplace Determination to manage an employee s unsatisfactory performance

10 The process is also summarised below, but you must remember that these Guidelines are not comprehensive and in each case advice must be taken to deal with the particular circumstances. Some Departments may also need to have regard to their particular dispute resolution procedures, inquiry processes, enterprise agreements or policy requirements. Clause 18 of the VPS Workplace Determination outlines the process for managing unsatisfactory work performance and is designed to: support employees with unsatisfactory work performance to improve their performance to the required standard; ensure that unsatisfactory work performance is addressed expeditiously; reflect the public sector values of integrity, impartiality, accountability and respect with the aim of ensuring that employees are treated fairly and reasonably; and provide a fair and transparent framework for action to be taken where an employee continues to perform below the employer s expected standard. Accordingly, subject to any applicable laws, action taken by the employer in relation to unsatisfactory work performance of a VPS employee (except casuals and employees subject to a probationary period of employment) must be in accordance with clause 18 of the VPS Workplace Determination. There are two distinct phases of performance management, an informal phase and a formal phase, which are discussed in more detail below. In respect of both phases, the VPS Workplace Determination requires that: the process for managing unsatisfactory work performance is consistent with the principles of procedural fairness, and in particular: all parties involved in the process commit to completing it as quickly as practicable; and the employer must take into account any reasonable explanation of any failure by the employee to participate in the process before making a decision; and the employer inform the employee that he or she is entitled to be represented by a person of their choice (including a union representative) at any stage of the formal review meetings of the unsatisfactory work performance management process. Finally, where there is reasonable cause, an employer may, at any time, elect to refer the management of unsatisfactory work performance to the misconduct process. Once that decision has been made, any matters that have arisen under the unsatisfactory performance process may be considered and will be relevant in the misconduct process. (a) Informal phase initial steps The informal process involves five steps: INFORMAL management of unsatisfactory work performance Step 1 Employee demonstrated unsatisfactory performance: As a first step, the employee must have failed to perform the required standards or expectations of the role. The employer must be able to define the specific circumstances in which the employee is considered to have demonstrated unsatisfactory work performance, having regard to the specific standards set, such as the requirements of their role statement and/or the employer s procedures and processes. Step 2 Meeting: To decide whether to commence the unsatisfactory performance procedure, the employer should arrange a meeting with the employee to discuss the alleged unsatisfactory performance. The employee may invite a representative if they wish. Step 1 Employee demonstrates unsatisfactory performance Step 2 Meeting to decide whether to commence formal performance management process Step 3 Procedural fairness requirements Step 4 Preliminary matters (eg. consider organisational/personal factors and alternatives) Step 5 Decide whether or not to commence the Formal Process 18 19

11 Step 3 Procedural fairness requirements: At this meeting, and before commencing formal unsatisfactory work performance processes, the employer must: tell the employee the purpose of the meeting; give the employee a copy of the formal unsatisfactory work performance process to be followed as outlined in the VPS Workplace Determination; provide a reasonable opportunity for the employee to seek advice from the union or a representative of their choice before the process commences; and allow the employee the opportunity to provide details of any mitigating circumstances. Step 4 Preliminary matters: After considering the employee s response, the employer must then consider whether to commence the formal unsatisfactory performance procedure. In making that decision, the employer must: consider organisational factors (ie. internal structure and arrangements, clarity of work expectations, access to training etc.) or personal factors (ie. health, personal relationships and career direction etc.) that play a role in the employee s unsatisfactory work performance; consider alternatives to the unsatisfactory work performance process to address the problem; and form a reasonable expectation that the employee is capable of meeting the required standard of performance. Where the employer and employee agree that the employee is not capable of meeting the required level of performance, the employer may transfer the employee to a suitable alternative position where reasonably practicable. Step 5 Decide whether or not to commence the formal process: Once a decision has been made about whether to commence the formal procedure or not, the employer must either: notify the employee that no further action will be taken at this time; or go to the formal management of unsatisfactory work performance stage. (b) 20 Formal phase unsatisfactory work performance process Where the employer considers that informal attempts to address an employee s unsatisfactory work performance have been unsuccessful, the employer may proceed to formally manage the employee s unsatisfactory work performance in accordance with, but not limited to, all or some of the following measures: increased supervision; change to the employee s performance plan; mentoring; training and professional development; increased feedback; and coaching. The formal unsatisfactory work performance process involves four separate stages: FORMAL Management of unsatisfactory work performance Stage 1 Formal counselling Stage 2 Formal written warning Stage 3 Final warning Stage 4 Determination of unsatisfactory work performance outcome At any stage of the formal review meetings, the employee is entitled to be represented by a person of their choice (including a union representative). Stage 1 Formal counselling: This stage requires the employer to invite the employee to a counselling session where the employer must: advise the employee of the unsatisfactory work performance and confirm the commencement of the formal counselling stage; outline the standard required of the employee; provide the employee with an opportunity to respond and improve within a reasonable timeframe; 21

12 place a record of the formal counselling session on the employee s file; review the work performance of the employee after a reasonable timeframe and determine whether the employee has met the required standard (and, if so, end the process and notify the employee that no further action will be taken unless unsatisfactory work performance is repeated) or not met the required standard (and, if so, proceed to Stage 2). Stage 2 Formal written warning: Where the employee s performance has not improved, or the employee engages in further unsatisfactory work performance, the employer can issue a formal written warning to the employee. In doing so, the employer must: advise the employee of the unsatisfactory work performance; outline the standard required of the employee; provide the employee with an opportunity to respond and improve within a reasonable timeframe; issue a formal written warning that indicates the standard expected of the employee, where and how the employee is not meeting this standard and the consequences if the employee fails to improve their performance (including that continued unsatisfactory work performance may result in termination of their employment); place a copy of the written warning on the employee s file; review the work performance of the employee after a reasonable timeframe and determine whether the employee has met the required standard (and, if so, end the process and notify the employee that no further action will be taken unless unsatisfactory work performance is repeated) or not met the required standard (and, if so, proceed to Stage 3). Stage 3 Final warning: The employer can provide the employee with a final written warning if the employee s performance has not improved within a reasonable time following the receipt of the formal written warning at Stage 2 of the process, or if the employee engages in further unsatisfactory work performance. To complete this stage, the employer must undertake the same steps as in Stage 2 with respect to the final written warning. If the employer ultimately determines that the employee has met the required standard of performance during the relevant timeframe, the employer must notify the employee that: the formal process has been completed; and that no further action will be taken against them, unless the employee engages in continued or repeated unsatisfactory performance, in which case the formal process may be continued to the next stage. Stage 4 Determination of unsatisfactory work performance outcome: If the employee s performance has not improved within the reasonable time period following the above process, the employer must: advise the employee of their continued or repeated unsatisfactory work performance; provide the employee with an opportunity to respond; after considering the employee s performance and response (including any failure to respond), the employer will determine the outcome that is to apply to the employee, advise the employee of the outcome (in writing) and place a copy of the outcome on the employee s file. The possible outcomes include:»assigning» the employee (with or without their agreement) to a role at a classification level or value range lower than their current classification; or»termination» of employment. To minimise the likelihood of any potential legal claim arising from a decision to terminate the employment of a VPS employee for unsatisfactory performance, it is important to obtain legal advice on the specific circumstances of each case to ensure compliance with all applicable laws and procedures. Note also that the PA Act and the applicable regulations provides employees with a right of review in relation to employer decisions regarding their performance (for more information, see Part 6: Disputes and Rights of Review) Additional support EAP, training and resources A key aspect of any performance management process is to ensure that the unsatisfactorily performing employee is provided with appropriate support to enable them to improve to the required standard. In addition to the forms of support outlined at the beginning of the formal performance management process (ie. increased supervision, change to the employee s performance plan, mentoring etc.), employers should, where appropriate, offer the following forms of support: 22 23

13 Referral to an Employee Assistance Program (EAP): Where appropriate, employers should inform employees who are being performance managed that counselling can be arranged through the EAP, which is a program intended to provide early and effective support to employees requiring assistance. The EAP provides employees with a short-term solution focused confidential counselling service consisting of a number of sessions for any work-related or personal issue. Further training and resources: The need for further training, resources and support is to be considered during the performance management process to assist the employee to improve and reach the required level of satisfactory performance. The nature of the training and resources provided will obviously depend on the nature of the employee s position and unsatisfactory performance, but may include: 24»training» and professional development;»increased» feedback; and/or»coaching» and/or mentoring. The type and level of support provided will depend entirely on the particular employee being performance-managed and their specific situation. Role of the decision-maker Before beginning the performance management process, it is important to consider who the relevant decision-maker for the employer is and what their role entails. As outlined earlier in Part 2: Overview: Sources of legal obligation and key concepts, it is critical to ensure which relevant decisionmaker has power to make decisions with respect to the employment of VPS employees, to ensure that the decision is valid and made in accordance with the PA Act. This preparation will clarify and streamline the performance management process and minimise confusion throughout it. During the performance management process, the role of the employer or manager is to: communicate clearly with employees: the standards of expected performance must be clearly explained, and specifically how the employee is failing to meet them; manage people and processes: ensure those involved in the process, including the employee, understand each step, and their role, in the process. (Please note the decision-maker should not be advised about the reasons for commencing the process, but only of the reasons for completing the process); counsel and mentor employees: where necessary, employees must be provided with adequate support to enable them to improve; and maintain proper records: if the performance management process does not run smoothly or the employee makes a claim of non-compliance, it is critical that the employer has taken notes during each meeting and is able to evidence each step taken throughout the process. Increasingly, employers are making audio recordings to ensure they accurately record each step in the performance management process. Some extra guidelines These extra guidelines are applicable to all employers, not just those covered by the VPS Workplace Determination: ensure that the required standards of performance are set out in writing in the employee s contract, position description, relevant policies or elsewhere, and that the employee has been made aware of these performance standards (if not, seek further advice); do not object to an employee s choice of representative without seeking legal advice; document all discussions you have with employees, including informal meetings, and comply with any relevant enterprise agreement requirements about documenting formal counselling sessions; the employee must be advised of the unsatisfactory work performance in clear and precise terms. It is not sufficient to say we are unhappy with your performance ; ask the employee whether there are any measures the employer can consider taking to help the employee improve their performance (ie. further training by the employer); request the employee to sign a record of formal counselling session to confirm it accurately reflects what was discussed. Invite the employee to comment in writing on this record (If the employee refuses to sign, include a note of this on the record and take immediate advice); ensure that the employee is given sufficient time to improve their performance after being formally counselled (this precise period will vary depending on the issues associated); ensure that the employee understands that their performance is under review; 25

14 make sure you record your considerations of the matters raised by that employee and that you have considered other relevant matters even if not raised by the employee, such as:»the» employee s length of service and past record of the employee;»whether» the employee has been provided with appropriate training to perform their job; and»the» employee s personal circumstances. If termination of their employment is a possibility it is particularly important to consider and the potential effect of the dismissal on them. If dismissal is likely, prepare a letter of termination outlining the reasons for dismissal, the date of termination and whether the employee is required to attend for work until the date of termination. We recommend you obtain legal advice in preparing this letter. Part 5: Managing conduct There are various degrees of behaviour that fall under the definition of misconduct, ranging from behaviour which may not result in any action being taken to behaviour that warrants summary dismissal. Misconduct generally involves wrongful, improper, or unlawful conduct which is generally something more than an error of judgment or an innocent mistake. Misconduct can include a single act or repeated acts. It is important for employers to understand the distinction between poor employee performance and poor employee conduct, as this will influence which process should be pursued to manage it. This section of the Guidelines outlines: what is misconduct; what is serious misconduct; how to assess conduct: misconduct vs serious misconduct; the VPS conduct and behaviour standards; an overview of the process for managing misconduct and serious misconduct; additional support EAP, training and resources; the role of the decision-maker and investigating officer; and some extra guidelines. Our checklist at Annexure B includes the steps that an employer must take under the VPS Workplace Determination before terminating an employee s employment for misconduct. What is misconduct? Conduct refers to an employee s poor behaviour and their failure to meet the employer s code of conduct and behavioural standards, including safety requirements. There are two particularly relevant sources. Section 4 of the PA Act contains a non-exclusive definition of misconduct which includes: improper conduct in an official capacity; or improper use by an employee of their position for personal gain; or 26 27

15 improper use by an employee of information acquired by virtue of their position to gain a personal benefit or to cause detriment to the public service or public sector. Under clause 19 of the VPS Workplace Determination, misconduct includes: contravention of a provision of the PA Act, the regulations to that Act, a binding code of conduct or a provision of any statute or regulation (including a breach of the enterprise agreement) that applies to the employee in the employee s employment; improper conduct in an official capacity; a contravention, without reasonable excuse, of a lawful direction given to the employee, as an employee, by a person authorised to give that direction; an employee making improper use of his or her position for a personal gain; or an employee making improper use of information acquired by him or her by virtue of his or her position to gain personally, or for anyone else, financial or other benefits or to cause detriment to the VPS or the public sector. What is serious misconduct? Serious misconduct is conduct of such a serious nature that it may lead to serious disciplinary action, including termination of employment. Serious misconduct may include misconduct which is persistent. While there is no definition of serious misconduct in the VPS Workplace Determination, it is defined in regulation 1.07 of the Fair Work Regulations 2009 (Cth) and includes both of the following: wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; conduct that causes serious and imminent risk to: 28»the» health or safety of a person; or»the» reputation, viability or profitability of the employer s business. Examples of serious misconduct are: criminal behaviour, including violence in the workplace, dealing in illegal drugs, stealing and fraud; dishonest behaviour, such as theft or fraud; harassment, bullying or abusive behaviour; obscene language directed towards a manager, other staff or customers or members of the public; intoxication at the workplace; serious breaches of occupational health and safety or environmental requirements; and failure to comply with a lawful and reasonable direction. Further, a breach of the VPS Code of Conduct can itself amount to serious misconduct. How to assess conduct: misconduct vs serious misconduct Before managing an employee s conduct issues, it is important to discern whether an employee s conduct amounts to serious misconduct or minor misconduct because different processes may be appropriate for each. However, it is not always straightforward to decide if an employee s conduct is serious misconduct or misconduct. The examples listed above are not exhaustive because the seriousness will depend on the circumstances of the conduct. As a general guide, if the conduct is of a nature or degree that, if proven, would destroy the employment relationship or lead to a strong diminution in trust and confidence in the employee, then it is serious misconduct. Some questions to consider that may assist in this assessment include: was the conduct criminal or dishonest? did the conduct put the safety of the employee or others at risk? did the conduct put property or the environment at risk? what was the impact of the conduct on employees or others? was it clear that the employer considered the conduct to be unacceptable? was the conduct one-off or persistent? As each case is different, conduct which amounts to serious misconduct in one case may not amount to serious misconduct in another, depending upon the circumstances. The context of the conduct, parity of treatment between 29

16 other employees and the personal circumstances of the individual employee will all be relevant in considering how to manage the employee s conduct and whether summary dismissal is appropriate. Summary dismissal means instant dismissal or dismissal without notice. A VPS employee who commits serious misconduct may be summarily dismissed. Care should be taken when terminating an employee s employment for serious misconduct because it is the harshest form of discipline an employer can impose. Summary dismissal may also highly antagonise the employee (which may result in legal challenge). Given the multitude of claims available to aggrieved employees, we recommend you seek advice prior to summary dismissal. What are the VPS conduct/behaviour standards? The various standards that Public Service Body Heads must comply with when managing performance and conduct issues, as outlined in Part 3: Public Administration Act overview, apply equally to the manner in which VPS employees conduct themselves in the workplace. Accordingly, VPS employees must ensure their behaviour complies with the following standards: the Public Sector Values; any binding Code of Conduct; the Public Sector Employment Principles; standards issued by the Public Sector Standards Commissioner; and any other provision of the PA Act or PA Regulations. Failure to behave in a manner consistent with these standards may constitute misconduct or serious misconduct and require employers to initiate conduct management processes. Failure by management to initiate a conduct management process, or unreasonable delay, may be taken or represented to be tacit consent and the employer may lose its right to act on the misconduct in question. Lawful and reasonable directions In addition to behaving in accordance with applicable codes of conduct and standards, VPS employees must also comply with any lawful and reasonable direction issued by their employer. A lawful and reasonable direction is a direction issued to: one employee in relation to poor conduct he or she has engaged in; or all employees about the organisation s conduct expectation generally that they must not engage in a particular form of conduct. If any employee then engages in conduct that is in breach of the direction, that can be serious misconduct, with serious consequences, including possible termination of employment. Accordingly, lawful and reasonable directions can be a useful tool in conduct management in: clarifying that conduct, which may have previously been treated as acceptable, will no longer be tolerated, or to ensure conduct expectations are understood and reinforced; dealing with persistent less serious poor conduct; and handling difficult situations which arise in managing conduct processes. The use of lawful and reasonable directions is serious. It should not be used without proper consideration and justification. Also, the employer must ensure that it appropriately follows up and enforces its directions. Overview of process for managing misconduct and serious misconduct If an employer suspects that an VPS employee has engaged in misconduct or serious misconduct, it will be appropriate to properly manage it in an efficient and comprehensive manner. From the outset, it is important to be aware that the misconduct management process must be consistent with the public sector employment principles (PA Act, section 8) and standards issued by the Public Sector Standards Commissioner and any other relevant procedures and standards. Our checklist at Annexure B outlines the steps that an employer must take under the VPS Workplace Determination to manage misconduct and serious misconduct. In addition to the checklist, the process is also outlined below, but it is important to note that these Guidelines are not comprehensive and in each case advice must be taken in respect of the particular circumstances