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Performance Management and Absenteeism
Andrew Shaw
Gwen Drewitt
Jackie Behrnes
26 May 2016
How to get the best
out of employees
Performance Management
Performance Management:
Basic Principles
• Steps on the way to improvement
• Performance management addresses: • quality of work
• quantity of work
• communication style
• leadership style
• Employer must take employees as they find them: “egg shell principle”
• Employees must be given attainable targets and assistance from employer to improve
Performance Management:
Considerations
• Any policies or procedures of the employer must be followed
• Performance concerns must be genuine and backed by evidence
• Employee must be informed of areas of poor performance and given opportunity to improve
• Length of time to improve depends on the performance issue identified
• Employee’s performance must be reviewed and employee formally notified if they have failed to improve
• Employee must be formally warned of consequences of failing to improve
Performance Management:
Process
• Informal: speak to employee – outline expectations – identify any underlying issues – give opportunity to improve – “line in the sand”
• Formal: Letter – meeting – outline expectations and areas they need to improve – provide assistance:
30 Days: Letter – meeting – first written warning
60 Days: Letter – meeting – final written warning
90 Days: Letter – meeting – tentative decision – dismissal
• Test of justification
Performance Management v
Misconduct: Principals
• Must not confuse the two concepts
• Misconduct concerns a person’s behaviour:
• Code of conduct, accepted norms
• Performance concerns the quality of a person’s work:
• KPIs, job description
• Run separate processes
• Can not build on performance with misconduct and vice
versa
Performance Management v
Misconduct: Examples
• Late to work
• Rudeness
• Data entry errors
• Failing to complete duties as required
• Refusing to perform duties as required
• Sleeping on the job
• Hygiene issues
• Language issues
Performance Management:
Case Example One
• Bagchi v Department of Inland Revenue [2008]
• Employee immigrated from India
• Sent on several courses, coached by range of employees
• Two Performance Improvement Procedures spanning 7 months
• Employee refused to accept performance concerns raised
• ERA and Employment Court found his dismissal was justified
Performance Management:
Case Example Two
• Chief Executive of Depart of Corrections v Imo [2007]
• Programme Facilitator
• Told offenders he’d been drink driving over the weekend
• Vented his frustrations with the DoC to offenders
• Supervisor watched recording of session
• Dismissed for serious misconduct
• ERA and Employment Court held that he had been unjustifiably
dismissed
• This was a performance issue not serious misconduct
• Mr Imo was reinstated
Performance Management:
Case Example Three
• Edwards v BofT of Bay of Islands College [2015]
• Principal had authoritarian leadership style
• School board started mentoring and performance managing
• Conduct issues raised and treated as serious misconduct
• Principal eventually dismissed
• Employment Court held that the employer should have seen the
performance management process through to its conclusion
• Dismissal unjustified
• Mr Edwards awarded $190,000 in compensation
Practical Example: One
• You receive an anonymous complaint about the way
Jack (Head of Accounts) communicates with staff
• You have previously discussed these concerns with Jack
and sent him on training courses
• Four employees have resigned recently. Three of whom
mentioned that Jack made them feel stupid and
unvalued
• Jack is one of your best performers
• How do you approach this situation?
Practical Example: Two
• Paul has worked for the business for 30 years
• During this time, he has not been performance
managed, even though he has not done his job well
• He has never been properly trained, instead learning
from the school of life
• He has not adapted well to modern technology in his role
• How do you approach this situation?
Absenteeism
Authorised Absenteeism
• Sick leave
• Bereavement leave
• ACC
• Jury service
• Primary carer leave
• Statutory holidays
• Alternative leave/TOIL
• Annual leave
• Study leave
• Special leave/Contractual entitlements
• Force majeure
Intermittent Sickness
(Illness/Injury)
• Employment Agreement provisions
• Taking a lot of sick leave – up to or in excess of statutory
entitlement
• Pattern of regular days – Mondays, after pay day etc
• Different medical reasons or the same
• Can impact on your business or other employees
Managing Intermittent
Sickness
• Introduce or change sickness reporting processes
• Request medical certificates:
• 3 days; or
• Genuine reasons
• Make employees take unpaid leave when sick leave is
exhausted
• Follow-up with employees/medical specialists
• Follow a formal process
Long Term Sickness
(Illness/Injury)
• Short-term employee:
• 3 months +
• Long-term employee:
• 6 months +
• Work or non-work
• Impacting on business and colleagues
• Frustration of employment
Managing Long Term
Sickness
• Terms of the employment agreement
• Whether the employee would have been employed long
term if they had not been sick
• The employee’s role
• The nature of the illness
• Disability discrimination
Managing Long Term
Sickness
• Wait a reasonable amount of time before dismissal
• Consider up-to-date medical evidence
• Establish when the employee can return to work, if at all
• Consider whether the employee’s role can be kept open
• Look at redeployment, retraining and alternative duties
Sickness: Obtaining Medical
Information
• Employment agreement:
• include right to obtain and view medical reports
• Company or employees doctor?
• GP or specialist?
• Rely on the Health and Safety at Work Act 2015:
• employer must take reasonably practicable steps to ensure the
health and safety of employees
• Rely on Holidays Act 2003:
• employer can request an employee provide a medical certificate
to establish no health and safety concerns for return to work
Sickness: Rehabilitation
• What is reasonable rehabilitation?
• Fishing
• Waka Ama Championship
• Undertaking physio work
• Horse riding
• Bowls
Discrimination
• Nothing in Human Rights Act 1993 shall prevent different
treatment based on disability where:
• the position is such that the person could perform the duties of
the position satisfactorily only with the aid of special services
or facilities and it is not reasonable to expect the employer to
provide those services or facilities; or
• the environment in which the duties of the position are to be
performed or the nature of those duties, or of some of them, is
such that the person could perform those duties only with a risk
of harm to that person or to others, including the risk of
infecting others with an illness, and it is not reasonable to take
that risk.
Unauthorised Absenteeism
• Abandonment of employment
• Unauthorised annual leave
• Lateness
• Extended breaks
• Leaving early
• Unauthorised appointments
• Personal activities during work hours
• Refusing to work statutory holidays
Absenteeism: Practical
Example One
• Jane calls in sick to work on a Monday. She has a
migraine
• This is the fourth Monday in 8 weeks that she has
called in sick. Each time for different reasons
• Jim, her colleague, draws to your attention a photo
posted by Jane on Facebook. It is of her riding a
horse
• How do you deal with this situation?
Absenteeism: Practical
Example Two
• Dave has been absent from work on and off for a total
of 140 days in the past year
• Apart from a few colds, his absences all relate to a
bad back
• The longest he has been off work is 3 weeks
• You want to terminate Dave’s employment
• How do you deal with this situation?
Absenteeism: Practical
Example Three
• Anne has been absent from work for 4 months with a
condition called severe dry eye, which means she
cannot work in air conditioning for prolonged periods
• She was due to return to work but broke her ankle badly
getting ready to come into work on her first day
• She is going to need surgery on her ankle
• The medical prognosis is that she will be fit to return in
12 weeks’ time
• You are a small business and cannot cope without
someone in Anne’s position for another 12 weeks
• What if you were a bigger employer with multiple
offices?
Note
The material contained in this workshop is necessarily in
summary form. It is not intended to be a comprehensive
statement on the law as it applies to the above topics.
Accordingly, you must not rely solely on this information
without first seeking detailed legal advice
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Contact Details
• Christchurch: • Andrew Shaw (Partner): 0292 449 001
• Jackie Behrnes (Senior Associate): 021 228 8685
• Gwen Drewitt (Senior Solicitor): 03 372 6377
• Auckland: • Fiona McMillan (Senior Associate): 027 351 2000
• Holly Swadel (Law Clerk): 09 300 6263
• Queenstown: • Siobhan Rastrick (Associate): 03 409 0321
