- Emma Butcher, Partner, LangtonHudsonButcher
ELM: We’re hearing a lot about changes in performance management within organisations at the moment, more specifically, how traditional performance appraisals are being updated with new and more innovative ways to assess employees’ performance and development. What are some of the key trends you’re seeing with regards to this? Are there any legal considerations that employers should look out for as they make the change?
EMMA: As employment lawyers, we leave how employers set up their performance management systems to the employers themselves and their human resources experts. However, ensuring that a performance management process, however it is set up, is robust, honest and regular, certainly helps an employer to deal with any problems that arise in a way that is low risk, efficient and cost effective from a legal point of view.
ELM: In your experiences, what are some of the common issues that arise from dealing with underperforming employees? How can an employer mitigate risks of claims?
EMMA: Underperformance is usually more complex to deal with than misconduct, medical incapacity or redundancy. Identifying clearly where the deficiencies are, managing those fairly and putting in place a timeline for improvement all present their own challenges, in any given case.
Every case is different and there is no “one size fits all”. The key to dealing with such problems in a way that is lawful but also relatively straight forward and efficient for the employer, is open and frank communication between employer and employee using objective examples of where things are not up to standard, keeping clear records of discussions and ensuring prompt attention is given when it is clear there are problems.
Employers tend to give employees the benefit of the doubt when the problem seems difficult to deal with and act out of anger and frustration to drive a quick outcome when a costly mistake is made by the employee. Steady and consistent management of issues is always the better bet to protect the business from the commercial and legal risks.
ELM: As we approach the second half of 2016; what are your top five employment law tips that HR teams across New Zealand can keep in mind if/when dealing with issues in their workplace generally?
- Ensure your employment agreements are compliant, tailored, watertight and issued and signed by every employee before they start work;
- Check your trial period clauses for compliance, ensure managers understand how and when to use them;
- If you have a code of conduct, guidelines or policy manual, regularly review it, make sure all employees have a copy or access to a copy and check it, along with the agreement, before dealing with any issue that arises;
- Treat every employment relationship problem as unique on its own facts rather than applying a checklist or template mentality;
- Form a trusting relationship with an accessible employment lawyer and get early and clear advice. It will always be more cost effective and valuable for the business to sense check early than muddle through, get it wrong, and bring in a lawyer later to clean up the mess.
About Emma Butcher:
Emma joined LangtonHudsonButcher after 14 years with one of New Zealand’s largest firms. She has considerable experience as counsel, trusted representative and advisor of a number of major national and international businesses and organisations. Emma is committed to providing commercially focused solutions to clients on all aspects of their employment law needs, from disputes, to transactional and strategic advice to agreements and policies. Emma is recommended in The Legal 500 2016 and Doyles Guide 2016.
Emma and her colleague Stephen Langton will be presenting at the upcoming HR Law Masterclass New Zealand series, in Wellington and Auckland respectively. They will be covering a detailed presentation on the topic of Underperforming employees: What are the common issues that arise from dealing with underperforming employees and how to best minimise the risk of claims.
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