Employment Law

Poor Performance and Misconduct

In small businesses it can be difficult to address issues of poor performance and misconduct by way of a formal disciplinary process, when the boss has to act as a manager one day and a mate the next. It can be all too easy to avoid confrontation and to tolerate matters until they get so far out of hand that they cannot be ignored.

The best way to deal with employment problems is to prevent them from occurring by having your employment policies in place, and by dealing with performance and misconduct issues as soon as they arise.

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.

Imagine this scenario: You have an employee who has been working for you for six months or a year with no apparent problems. However, their productivity seems to be going down. They used to get all their work done in the time available to them, but now they seem to be a lot slower at getting things done and consequently some things are falling off the edge.

What do you do? The first step is to define the problem. The employee is having difficulty with the requirements of the job, so at first blush, this seems to be a performance issue.

The first thing to do is make sure that the employee knows the expectations of his or her role. Ask yourself:

  • have expectations of performance been communicated to the employee (induction, performance review system, on the job training)?
  • are performance standards documented?
  • is there a job or position description?
  • what specific performance expectations are not being met?
  • has poor performance been discussed with the employee previously?
  • could there be any other reason for poor performance, e.g. personal problems, poor equipment, language difficulties, medical issues, personality differences?
  • will the employee accept there is a problem?
  • has the employee expressed an opinion as to the cause of the problem?

With these things in mind, have an initial discussion with the employee. Detail the expectation of the role and have a discussion about how things could improve.

If an informal discussion doesn’t improve things, then you will need to enter into a formal process. If you have a performance management process then it is essential to follow that process.

The essentials to follow before a formal meeting include:

  • detailing the specific allegations of poor performance and the likely consequences if performance doesn’t improve. Provide written statements and file notes if applicable.
  • advise the employee that they are entitled to representation/a support person.

At the meeting

  • Provide an explanation of why the meeting was called.
  • Address the specific allegations against the employee.
  • Ask for the employee’s response to these allegations.
  • Ask any clarifying questions once they have given their explanation.
  • Generate options to improve the situation where appropriate.
  • Agree on action to be taken by either party where appropriate.

In performance related matters, simply documenting what happened at the meeting and giving a copy to each party may be sufficient. At other times, a follow up meeting will be necessary. Where improvement hasn’t happened, despite giving assistance and agreement to improve, then you will move to a disciplinary process.


In our “poor productivity” scenario, imagine that, through observing your employee and looking at the internet use records, that it becomes clear that your employee’s productivity is low because he or she is spending a substantial amount of work time looking at internet sites. Even if the sites are not “questionable” they are definitely not work related. What can you do in this situation?

The first question to ask is what your policies/employment agreement say about the availability of the internet. Your agreements or policies should say on what basis employees can use the internet for personal use, advise them that internet use will be monitored, what information is to be collected and the reasons for collection, as well as the consequences of inappropriate, unauthorised, or excessive use.

If you start a disciplinary process, then as usual there is a requirement for a full investigation and a fair process. You must gather together all of your information including checking that you have made a proper effort to make the employee aware of the internet policy. You must then conduct a proper investigation of the misuse of the internet. The allegations and possible consequences must be put to the employee and notice given of a disciplinary meeting. You also need to advise the employee of their right to representation/a support person.

At the disciplinary meeting it is important to disclose all of the relevant information and to give the employee an opportunity to give their explanation. If the employee’s explanation throws up any further issues, then you may need to undertake further enquiries. In any event, you will need to adjourn the meeting say, for 24 hours, to consider the employee’s explanation together with all the facts as they have arisen throughout the investigation and disciplinary meeting, and decide whether the conduct is serious enough to warrant a warning, a final warning, or a dismissal. If the conduct is serious enough to warrant dismissal, then you need to advise the employee at the follow up meeting and provide the employee with reasons for the dismissal in writing.

In our scenario, if there is a clear breach of an internet use policy or clause and the employee accepts that he or she has used it excessively for personal reasons during work time and has no good explanation for it, then you may well have grounds for a written warning, or, possibly dismissal. However, if the employee gives you an explanation as to the excessive use, such as, they don’t have enough work, then you may need to investigate further.