Dismissal For Performance Or Misconduct

Introduction

This policy is designed to ensure that when discipline and termination issues arise, employees are treated in a fair and equitable manner. It also aims to ensure that managers involved in the disciplining and termination of employees meet industrial law standards for termination of employment. This applies both to the reason for the dismissal and the manner in which the dismissal is carried out.

Grounds of terminating an employee

Lawful reasons for dismissing an employee include:

  • performance e.g. where the employee is unable to satisfactorily complete the inherent duties of the job set out in the job description;
  • conduct e.g. consistently late for work;
  • serious misconduct e.g. fighting, drinking on the job; and
  • redundancy i.e. the position no longer exists

Performance

An employee’s performance is considered to be inadequate if the employee is not meeting the inherent requirements of the position as set out in the job description.

Conduct

Misconduct includes:

  • actions involving harm (or the real possibility of harm) to any employee;
  • dishonesty;
  • verbally abusing a person at the workplace;
  • harassing or discriminating against an employee
  • sexual harassment;
  • inefficiency, neglect of duty, malingering.

Verbal Warnings

Where a manager has concerns about an employee’s performance or conduct (excepting serious misconduct - see below), the manager should explain to the employee the manner in which the employee’s conduct or performance is not meeting the required standard. This standard may be set in the job description relating to the position, or in a Company Policy setting standard of conduct.

The manager will in the first instance, verbally counsel the employee by informing him/her of the area(s) in which they are not meeting the required standard of performance or conduct expected of them.

The employee will be given an opportunity to respond to the manager’s concerns and to rectify his or her performance or conduct within a reasonable period of time, depending on the circumstances.

The manager will make written note of the verbal warning.

Official Warnings

If the employee fails to rectify his or her conduct or performance within the required period, the manager and the employee will attend a meeting at which an official warning will be given.

If the employee’s continued performance or inadequate conduct is such that it would be unreasonable for the manager to allow the employee the allotted time to remedy the problem, then the manager will institute the first official meeting prior to the specified time expiring.

The manager will inform the employee prior to the meeting of the concerns which the manager has with the employee’s conduct or performance, and state that the employee is allowed to have a person of their choice accompany them to the meeting. It is also recommended that the manager have a representative from the Senior Management Team at the meeting.

At the meeting the manager will outline the nature of the problem(s) and allow the employee an opportunity to respond.

If the employee’s response is not adequate the manager will present the employee with an official written warning. The warning should state:

  • the problem;
  • refer to all previous verbal warning(s) and their dates;
  • the corrective action which is required;
  • what action will be taken if the employee does not remedy the problem (when issuing a first warning, the warning should state that if the problem is not remedied within a specified time then the employee will be issued with a further warning and may ultimately be dismissed);
  • state that the written warning will be filed in the employee’s personal file.

The manager should then monitor the employee’s performance or conduct to determine whether he or she is making the required improvement.

Second Official Warning

If the employee fails to meet the appropriate standard within the time allowed, the manager should then have a second official meeting with the employee. The second official meeting should replicate the first meeting. However, if the employee has not adequately explained their failure to remedy their poor performance or conduct, that continuing poor performance or conduct may lead to dismissal.

Note: It is not a legal requirement that a third written warning be issued - it is just very safe practice. However, if the manager follows the above steps closely and listens objectively to the employee’s responses at each stage, two written warnings will usually be justified, except where the transgression is minor in nature. In such a case it may be appropriate to give a third warning.

Steps leading to dismissal

Following the issuing of the second warning, if the employee fails to remedy the fault within the allotted time, or it would be unreasonable for the manager to allow the employee to continue working out the allotted time, the manager should then initiate dismissal proceedings.

The manager should consult with and gain approval from the Group General Manager, before dismissing an employee.

That will involve requesting by letter that the employee attend an official meeting. The letter should state:

  • that the employee’s conduct or performance has not improved;
  • the steps the manager has taken to remedy the problem in the past;
  • the fact that the employee is entitled to be accompanied by a person of their choice; and
  • the fact that, unless the employee can adequately explain his or her conduct or performance, then the employer may dismiss the employee.

Again the employee may have the person of their choice with them at the meeting. The manager should start by outlining the concerns he or she has with the employee’s performance or conduct. It is then very important that the manager listen to the employee’s responses as objectively as possible. The manager should then ask the employee to step outside while the manager considers what he or she will do.

If the employee’s response is considered to be adequate, the manager should inform the employee that they will remain employed but that the employee’s performance and/or conduct will continue to be closely monitored for a specified period of time (e.g. three months).

If the employee’s response is considered inadequate, the manager has two options:

1. issue the employee with a third and final written notice; or
2. verbally inform the employee that he or she is to be dismissed and then follow that up with a written notice of termination. That notice should state the reasons for the dismissal, i.e. performance or conduct, and the history of warnings given previously.

DISMISSAL FOR SERIOUS CONDUCT

The Company is entitled to instantly dismiss an employee in circumstances where that employee has committed an act of serious misconduct. Serious misconduct can include:

  • fighting; breaches of the drug and alcohol policy;
  • industrial sabotage;
  • refusal to carry out the lawful instructions of a manager

An employee who commits any of these acts is liable to instant dismissal

Other acts may also constitute serious misconduct, depending on the circumstances of the case. It is up to the manager of the employee and the Group General Manager, to determine when an act is serious misconduct.

In some cases, where the employee’s act of serious misconduct is witnessed by the manager, and where the act is blatant and inexcusable, the manager is entitled to dismiss the employee on the spot. An example of this is where an employee assaults his/her supervisor.

It is advisable, however, to consult with the Group General Manager prior to termination

In most cases, the safest way to proceed is for the manager of the area, and the Group General Manager, to conduct an investigation into the incident or behaviour. The employee concerned may be sent home on full pay while the investigation is proceeding. The managers should endeavour to find out all the facts before a decision to dismiss the employee is made. The manager should interview all those people who could assist the investigation. The offending employee should also be interviewed.

Before dismissing the employee, the managers should be satisfied on the balance of probabilities that the incident took place.

An employee dismissed for serious misconduct is not entitled to payment in lieu of notice.

DISMISSAL ON THE GROUNDS OF REDUNDANCY

Globus recognises that from time to time positions may become redundant. It is the policy of Globus that every effort will be made to avoid retrenchment through internal re-deployment, re-training, natural attrition, and by giving preference to internal candidates as vacant positions arise.

Retrenchment will not occur until all reasonable alternatives for continuing employment have been considered by the Company (including transfer to lower paid duties), and no suitable alternative employment is ultimately available.

If an employee’s position becomes redundant and alternative employment is internally located and accepted, a two month trial period in the new position will operate. Should either the employee or the Company find that the employee is unsuited to the new position, the employee’s service will be terminated without loss of retrenchment entitlements payable at the date service actually terminates.

If an employee accepts re-deployment internally at a lower rate of pay, and after the two month trial it is mutually agreed that the employee is unsuited to the new position, the employee will receive retrenchment entitlements based on the employee’s salary prior to the internal re-deployment. Upon termination through retrenchment, an employee shall receive four weeks written notice and be paid a lump sum severance payment as follows:

  Rate for Calculation of Severance Payment
Length of Continuous Service by Employee Employees Under 45 Years of Age Employees Over 45 Years of Age
Less than 1 year Nil Nil
1 year but less than 2 years 4 weeks pay 5 weeks pay
2 years but less than 3 years 7 weeks pay 8.25 weeks pay
3 years but less than 4 years 10 weeks pay 12.5 weeks pay
4 years but less than 5 years 12 weeks pay 15 weeks pay
5 years but less than 6 years 14 weeks pay 17.5 weeks pay
6 years but less than 7 years 16 weeks pay 20 weeks pay
7 years but less than 8 years 18 weeks pay 22.5 weeks pay
8 years but less than 9 years 20 weeks pay 25 weeks pay
9 years but less than 10 years 22 weeks pay 27.5 weeks pay
10 years but less than 11 years 24 weeks pay 30 weeks pay
11 years but less than 12 years 26 weeks pay 32.5 weeks pay
12 years but less than 13 years 28 weeks pay 35 weeks pay
13 years but less than 14 years 30 weeks pay 37.5 weeks pay
14 years but less than 15 years 32 weeks pay 37.5 weeks pay
15 years but less than 16 years 34 weeks pay 37.5 weeks pay
16 years and over 36 weeks pay 37.5 weeks pay