Conciliation is often used interchangeably with Mediation due to their similarities. Conciliation allows a more investigative approach. Such a process allows the third party to investigate employers once an employee has lodged a claim against them in relation to a legislative breach.
The Fair Work Commission is often used to a common form of conciliation. If parties have exhausted all efforts to resolve an issue, either on their own or with the assistance of a mediator they will seek to use conciliation.
Unlike a mediator, the conciliator will play a more active role in the conflict resolution process. They have the ability to provide assistance, encourage parties and to intervene where they feel they need to.
MEDIATION
Mediation is a process whereby a third party is involved but not responsible for resolving conflict between two parties. The mediator is a neutral party who is used to manage and define the conflict resolution process. In other words they are used as a way to ensure that the parties involved ‘stay on track’ in resolving their issues.
The mediator will:
Typically, HR is involved in the mediation process as they are seen as the mutual force within an organisation. When HR is involved it’s known as internal mediation. There are instances where an organisation will involve an external third party to take HR’s place in the mediation process. This could be due to conflict of interest, HR not having the correct skill set or level of experience to handle the situation.
Mapping conflict is a method used by HR managers to better understand conflict. It’s common when trying to determine appropriate strategies in trying to deal with conflict. The idea behind mapping a conflict allows HR to mentally map the conflict in a way to better understand the following:
Understand who is involved in the conflict (directly and indirectly)
Determine the needs of those parties involved in the conflict
Understand the values and beliefs which are important to each party and which they would be prepared to act upon.
Define the objectives of each party and determine what they are wanting to achieve
Determine how the parties perceive each other and how they view the conflict.
Determine any negative implications or limitations for each party.
How does each of the parties expand their views of the other.
Ensure each party reflects and reviews their own attitudes and what do they need to change or act upon in order to help resolve the conflict.
IF AN EMPLOYEE DISAGREES WITH OR REJECTS FEEDACK ON POOR PERFORMANCE
IF AN EMPLOYEE BECOMES AGGRESSIVE
IF AN EMPLOYEE BECOMES EMOTIONAL
IF THE SUPPORT PERSON TAKES OVER THE DISCUSSION
IF THE EMPLOYEE OR SUPPORT PERSON MAKES THREATS
IF THE EMPLOYEE REFUSES TO CONTINUE THE DISCUSSION OR WALKS OUT
By making sure you are prepared with specific examples, you have planned your discussion agenda and are confident with the key messages you wish to provide to your employee will help you to remain calm during a difficult performance management discussion.
It is important to keep in mind that where an employee’s performance is unsatisfactory, it is best to act swiftly to address these performance issues as they arise (instead of leaving them to be addressed in the formal appraisal process which may take place months after the underperformance is first noticed). This will provide the employee with an opportunity to respond and to improve their performance before a formal performance appraisal process is conducted.
There is no magic number of how many warnings an employee must receive before their employment can be terminated. A common misconception is that three warnings is the upper limit before termination procedures can be followed, however, there is no legislative requirement which reflects this. What employers do need to be mindful of is the risk of unfair dismissal claims being made by employees who feel that they were not sufficiently warned about their underperformance and received no opportunity to improve or respond before being terminated.
Some key points to note:
Verbal warnings are appropriate when an employee first starts showing signs of underperformance, or where the conduct is such that it does not warrant a formal performance management process, but still requires addressing. The employee’s direct supervisor should issue the verbal warning and is best accompanied by an informal performance management process. The aim is for performance improvement, so an informal performance management process allows a supervisor to inform their subordinate of the performance gap, and ways to correct it. Further counselling, training or access to the employers Employee Assistance Program (EAP) may also be necessary depending on the nature of the underperformance and the cause.
Although oral in nature, verbal warnings should still be documented as being issued. This will assist employers if an employee makes any claims for unfair treatment in the future.
A first written warning is appropriate in a number of instances. These include; where a previous verbal warning has been issued for a minor problem and the employee has not improved their performance, or where an employee has not previously been warned but their behaviour / underperformance is such that a written warning is deemed necessary.
Ideally a written warning will be issued in conjunction with a formal performance management process being followed. This will give the employee an opportunity to respond to the underperformance issues and work with their manager to jointly seek a solution to the problem.
The written warning should contain the following details:
A performance Improvement Plan may also be issued with the first written warning.
The number of warnings issued before an employee can be dismissed will depend on the severity of the underperformance, behaviour or misconduct complained of and whether any improvement has been noticed. In some circumstances a final written warning may be the first warning which is issued to an employee if the circumstances are serious enough. Conversely, employers may choose to issue a final written warning to an employee instead of dismissing them where they have shown considerable improvement but still fall short of the desired performance standard. It is inadvisable to issue repeated final warnings, however the situation needs to assessed on the facts.
Effective performance appraisal relies on clear performance standards being established and discussed with employees. Using these standards, appraisal involves:
Performance objectives describe what is to be accomplished by the individual and/or the team or department over a defined period of time. These objectives need to be SMART (i.e. specific, measurable, achievable, realistic and time-based) and agreed.
The performance standards define the standard of performance required to achieve the objective.
The following characteristics will help ensure performance standards are fair and useful. The standards should:
The performance standards set out the actions, behaviours or results to be achieved that are necessary for satisfactory performance.
Unlike mediation and conciliation, which focus on the interest and needs of both parties, arbitration is focused on legal rights followed by wants.
Arbitration involves both conflicting parties being heard by a third party. The parties are to present their case/matter, along with any supporting evidence.
The Arbitrator is used as judge and after hearing both parties they impose decision, which is legally binding. Given that both parties need to present their case and ultimately argue their point, arbitration can be seen as more confronting in comparison to mediation and conciliation.
In Australia, the arbitration process is often done by the Fair Work Commission or various State Industrial Commissions. Given the win/lose approach to the outcome, many organisations use arbitration as a last option should the Mediation and Conciliation fail.
Performance objectives describe what is to be accomplished by the individual and/or the team or department over a defined period of time. These objectives need to be SMART (i.e. specific, measurable, achievable, realistic and time-based) and agreed.
The performance standards define the required standard of performance required to achieve the objective.
Performance management involves a comparison of performance against the defined performance standards. Whilst the required standards will vary from organisation to organisation, there are a number of factors which can help guide the development of these standards.
The following characteristics will help ensure performance standards are fair and useful. The standards should:
The performance standards set out the actions, behaviours or results to be achieved that are necessary for satisfactory performance.
ORGANISATIONAL CONDUCT AND BEHAVIOURAL STANDARDS
In addition to individual, team and department performance standards, employees need to be made aware of the expected level of conduct and behaviour that is acceptable in the workplace generally. These standards are communicated through HR policy and procedure documents and are re-enforced by management attitude and overall adherence to such. This will have a significant impact on organisational culture and will help to avoid situations where employees are unsure of what is considered “acceptable” behaviour.
Some examples of typical policy and procedure documents containing conduct and behavioural standards are:
In addition to these examples, specific performance management, discipline and termination policy and procedure documents should set out the consequences of underperformance and breaches of other HR policies.
In order to ensure employee conduct and behaviour is aligned with organisational expectations, it is essential that employees are aware of specific policy and procedure documents and understand their contents. This is particularly important if an employer alleges that an employee’s conduct was a breach of company policy and/or procedure and they wish to counsel the employee for misconduct, issue warnings or terminate their employment. The burden of proving awareness and understanding lies with employers and may expose organisations to legal risk if not discharged.
Policies and procedures need to be clearly expressed, communicated and understood, applied consistently, offer a level of certainty for employees regarding workplace norms.
This can be summarised as the “Five C’s of effective policies and procedures”:
Best Practice Tip: Employers may need to make company documents available in other languages, braille, or in audio format to cater to diverse groups of employees. The greater the lengths an employer goes to in communicating organisational values and standards, the less risk they will attract if relying upon these for performance management and disciplinary procedures in the future.
Legal costs
If you receive allegations of sexual harassment you should obtain formal legal advice as soon as possible, so that you can determine your risks and appropriate courses of action. Otherwise you may act in a way which increases your exposure to other legal costs you may face down the track, such as defending claims by the victim or harasser or paying damages/compensation/penalties. See the section below under ‘Legal Aspects’ for further details.
Organisational costs
Properly managing sexual harassment claims will take time away from key staff including Human Resources and managers, in addition to the individuals involved (including the victim, alleged harasser and witnesses). Other organisational costs include staff turnover and reputational damage for your business;
Costs to individuals
Sexual harassment can be incredibly costly for individuals, including the victim, alleged harasser and even witnesses. Victims may suffer significant psychological harm from sexual harassment, which can lead to physical harm (related to or arising from the psychological harm, including self-inflicted harm). Employees can lose their jobs and/or ability to work at full (or any) capacity, or become disgruntled and resign.
There are a number of things that can be done to attempt to prevent underperformance, these include ensuring the following:
For a list of common performance issues, possible causes and specific corrective action, please refer to the Fair Work Ombudsman’s Best Practice Guide for Managing Underperformance.www.fwo.gov.au
Under-performance should be addressed by an employee’s direct line manager. Although a challenging and often uncomfortable process for both parties, under-performance needs to be addressed promptly and cannot be left until the formal performance appraisal process.
Possible negative effects of failing to address performance quickly include:
In order to handle situations of under-performance, line managers need clear procedures to follow, support from their organisation and training in how to manage these sorts of situations.
