11.1 Handling Performance

As you know from reading this book so far, the time and money investment in a new employee is overwhelming. The cost to select, hire, and train a new employee is staggering. But what if that new employee isn’t working out? This next section will provide some examples of performance issues and examples of processes to handle these types of employee problems.

Types of Performance Issues

One of the most difficult parts of managing others isn’t when they are doing a great job—it is when they aren’t doing a good job. In this section, we will address some examples of performance issues and how to handle them.

1. Constantly late or leaves early. While we know that flexible schedules can provide a work-life balance, managing this flexible schedule is key. Some employees may take advantage and, instead of working at home, perform nonwork-related tasks instead.
2. Too much time spent doing personal things at work. Most companies have a policy about using a computer or phone for personal use. For most companies, some personal use is fine, but it can become a problem if someone doesn’t know where to draw the line.
3. Inability to handle proprietary information. Many companies handle important client and patient information. The ability to keep this information private for the protection of others is important to the success of the company.
4. Family issues. Child-care issues, divorce, or other family challenges can cause absenteeism, but also poor work quality. Absenteeism is defined as a habitual pattern of not being at work. Note that in some cases, employers cannot discipline and must accommodate to the point of undue hardship according to the Human Rights Act. For more information on this, refer to the chapter on the Legal Environment in Canada.
5. Drug and alcohol abuse. Drug and alcohol abuse contribute to workplace accidents and injuries. As addictions are treated as a disability in Canada, how you handle these situations may depend upon whether an employee is a recreational user or has an addiction. This is complicated by the fact that denial is a symptom of addiction, so simply asking the individual whether they have an addiction is not sufficient.  Please keep in mind that when we talk about substance abuse, we are talking about not only illegal drugs but prescription drug abuse as well. Substance abuse can cause obvious problems, such as tardiness, absenteeism, and nonperformance, but it can also result in accidents or other more serious issues.
6. Nonperforming. Sometimes employees are just not performing at their peak. Some causes may include family or personal issues, but oftentimes it can mean motivational issues or lack of tools and/or ability to do their current job.
7. Conflicts with management or other employees. While it is normal to have the occasional conflict at work, some employees seem to have more than the average owing to personality issues. Of course, this affects an organization’s productivity.
8. Theft. The numbers surrounding employee theft are staggering. The Retail Council of Canada indicates that 33% of all theft is due to employee theft.[3] Obviously, this is a serious employee problem that must be addressed.
9. Ethical breaches. The most commonly reported ethical breaches by employees include lying, withholding information, abusive behavior, and misreporting time or hours worked, according to a National Business Ethics study. [4] Sharing certain proprietary information when it is against company policy and violating noncompete agreements are also considered ethical violations. Many companies also have a nonfraternization policy that restricts managers from socializing with nonmanagement employees.
10. Harassment. Engagement of sexual harassment, bullying, or other types of harassment would be considered an issue to be dealt with immediately and, depending on the severity, may result in immediate termination.

Employee conduct outside the workplace. Speaking poorly of the organization on blogs or Facebook is an example of conduct occurring outside the workplace that could violate company policy. Violating specific company policies outside work could also result in termination. For example, in 2010, thirteen Virgin Atlantic employees were fired after posting criticisms about customers and joking about the lack of safety on Virgin airplanes in a public Facebook group. [5]In another example, an NFL Indianapolis Colts cheerleader was fired after racy Playboy promotional photos surfaced (before she became a cheerleader) that showed her wearing only body paint. [6]

While certainly not exhaustive, this list provides some insight into the types of problems that may be experienced. As you can see, some of these problems are more serious than others. Some issues may only require a warning, while some may require immediate dismissal. As an HR professional, it is your job to develop policies and procedures for dealing with such problems. Let’s discuss these next.

What Influences Performance?

When you consider the amount of time it takes to recruit, hire, and train someone, it can be disappointing to find that a person has performance issues. Sometimes performance issues can be related to something personal, such as drug or alcohol abuse, but often it is a combination of factors. Some of these factors can be internal while others may be external.

All the internal reasons speak to the importance once again of hiring the right person to begin with. The external reasons may be something that can be easily addressed and fixed. Whether the reason is internal or external, performance issues must be handled in a timely manner.

Defining Discipline

If an employee is not meeting the expectations, discipline might need to occur. Discipline is defined as the process that corrects undesirable behavior. The goal of a discipline process shouldn’t necessarily be to punish, but to help the employee meet performance expectations. Often supervisors choose not to apply discipline procedures because they have not documented past employee actions or did not want to take the time to handle the situation. When this occurs, the organization lacks consistency among managers, possibility resulting in motivational issues for other employees and loss of productivity.

To have an effective discipline process, rules and policies need to be in place and communicated so all employees know the expectations. Here are some guidelines on creation of rules and organizational policies:

1. All rules or procedures should be in a written document.
2. Rules should be related to safety and productivity of the organization.
3. Rules should be written clearly, so no ambiguity occurs between different managers.
4. Supervisors, managers, and human resources should communicate rules clearly in orientation, training, and via other methods.
5. Rules should be revised periodically, as the organization’s needs change.

Of course, there is a balance between too many “rules” and giving employees freedom to do their work. However, the point of written rules is to maintain consistency. Suppose, for example, you have a manager in operations and a manager in marketing. They both lead with a different style; the operations manager has a more rigid management style, while the marketing manager uses more of a laissez-faire approach. Suppose one employee in each of the areas is constantly late to work. The marketing manager may not do anything about it, while the operations manager may decide each tardy day merits a “write-up,” and after three write-ups, the employee is let go. See how lack of consistency might be a problem? If this employee is let go, he or she might be able to successfully file a lawsuit for wrongful termination, since another employee with the same performance issue was not let go. Wrongful dismissal means an employer has terminated an employee without notice or without just cause. According to the Canadian Bar Association, just cause “means that you did not perform your job duties or you did something seriously wrong, like stealing from your employer or unreasonably refusing to follow your supervisor’s directions.”¹⁰ To avoid such situations, a consistent approach to managing employee performance is a crucial part of the human resources job.

The Role of the Performance Appraisal in Discipline

Besides the written rules, each individual job analysis should have rules and policies that apply to that specific job. The performance appraisal is a systematic process to evaluate employees on (at least) an annual basis. The organization’s performance appraisal and general rules and policies should be the tools that measure the employee’s overall performance. If an employee breaks the rules or does not meet expectations of the performance appraisal, the performance issue model, which we will discuss next, can be used to correct the behavior.

Performance Issue Model

Because of the many varieties of performance issues, we will not discuss how to handle each type in detail here. Instead, we present a model that can be used to develop policies around performance, for fairness and consistency.

We can view performance issues in one of four areas.

Mandated issues are serious and must be addressed immediately. A mandated issue is one that goes beyond the company and is part of the law that governs the organization. Examples of mandated issues might include an employee sharing information that violates privacy laws, not following safety procedures, or engaging in sexual harassment. For example, let’s say a hospital employee posts something on his Facebook page that violates patient privacy. This would be considered a mandated issue (to not violate privacy laws) and could put the hospital in serious trouble. These types of issues need to be handled swiftly. A written policy detailing how this type of issue would be handled is crucial. In our example above, the policy may state that the employee is immediately fired for this type of violation. Or, it may mean this employee is required to go through privacy training again and is given a written warning. Whatever the result, developing a policy on how mandated issues will be handled is important for consistency.

The second performance issue is called a single incident. Perhaps the employee misspeaks and insults some colleagues or perhaps he or she was over budget or late on a project. These types of incidents are usually best solved with a casual conversation to let the employee know what he or she did wasn’t appropriate. Consider this type of misstep a development opportunity for your employee. Coaching and working with the employee on this issue can be the best way to nip this problem before it gets worse.

Often when single incidents are not immediately corrected, they can evolve into a behavior pattern, which is our third type of performance issue. This can occur when the employee doesn’t think the incident is a big deal because he hasn’t been correct before or may not even realize his is doing something wrong. In this case, it’s important to talk with the employee and let him know what is expected.

If the employee has been corrected for a behavior pattern but continues to exhibit the same behavior, we call this a persistent pattern. Often you see employees correct the problem after an initial discussion but then fall back into old habits. If they do not self-correct, it could be they do not have the training or the skills to perform the job. In this phase of handling performance issues, it is important to let the employee know that the problem is serious and further action will be taken if it continues. If you believe the employee just doesn’t have the skills or knowledge to perform the job, asking him or her about this could be helpful to getting to the root of the problem as well. If the employee continues to be nonperforming, you may consider utilizing the progressive discipline process before initiating an employee separation. However, investigating the performance issue should occur before implementing any sort of discipline.

Investigation of Performance Issues

When an employee is having a performance issue, often it is our responsibility as HR professionals to investigate the situation. Training managers on how to document performance failings is the first step in this process. Proper documentation is necessary should the employee need to be terminated later for the performance issue. The documentation should include the following information:

1. Date of incident
2. Time of incident
3. Location (if applicable) of incident
4. A description of the performance issue
5. Notes on the discussion with the employee on the performance issue
6. An improvement plan, if necessary
7. Next steps, should the employee commit the same infraction
8. Signatures from both the manager and employee

With this proper documentation, the employee and the manager will clearly know the next steps that will be taken should the employee commit the infraction in the future. Once the issue has been documented, the manager and employee should meet about the infraction. This type of meeting is called an investigative interview and is used to make sure the employee is fully aware of the discipline issue. This also allows the employee the opportunity to explain his or her side of the story. These types of meetings should always be conducted in private, never in the presence of other employees.

In unionized organizations, however, the employee is entitled to union representation at the investigative / disciplinary interview.

Options for Handling Performance Issues

Our last phase of dealing with employee problems would be a disciplinary intervention. Often this is called the progressive discipline process. It refers to a series of steps taking corrective action on nonperformance issues. The progressive discipline process is useful if the offense is not serious and does not demand immediate dismissal, such as employee theft. The progressive discipline process should be documented and applied to all employees committing the same offenses. The steps in progressive discipline normally are the following:

1. First offense: Unofficial verbal warning. Counseling and restatement of expectations.
2. Second offense: Official written warning, documented in employee file.
3. Third offense: Second official warning. Improvement plan (discussed later) may be developed. Documented in employee file.
4. Fourth offense: Possible suspension or other punishment, documented in employee file.
5. Fifth offense: Termination and/or alternative dispute resolution.

Sample Progressive Discipline Policy¹¹

Go2HR provides programs and services to support BC employers in the tourism and hospitality industry. One of the services they provide are sample policies, such as this one¹²:

Even when an employer has cause for discipline, they may not have sufficient grounds for termination unless the employer has followed and documented a progressive discipline approach, or the incident was so severe (for example, theft) that it breaks the trust between the employer and employee. Generall the courts examine “Mitigating Factors” when determining whether a termination was warranted. Mitigating Factors include:

• The employee’s prior work record and length of time they worked for the employer
• Inconsistent application of rules
• Premeditation (if any)
• Remorse / likeliood to repeat
• Provocation (if any)
• Was this an isolated event or part of an ongoing pattern
• Economic hardship – for instance if the person is the sole caregiver of a disabled child, the courts might indicate a less severe form of punishment would be more appropriate.
• Seriousness of the offence

The Seven Tests of Just CauseThe seven test[s] of just cause represent a practical and effective way to determine whether a proposed disciplinary action is firmly and fairly grounded. It is fair to assume that these tests will be applied by arbitrators in the event that disciplinary actions are challenged, and it is therefore good practice to apply them prospectively when considering the imposition of progressive discipline.

Seven tests:

1. Notice

• Prior to imposition of discipline, employee must have notice of rules and expectations.
• Establish through:
  • New employee orientation
    • Orientation checklists
    • Receipts for departmental handbooks
• Periodic reinforcement/coaching

2. Reasonable Rules and Orders

• Cannot be inconsistent with collective bargaining agreement(s)
• Cannot be arbitrary or capricious
• Must be reasonably related to business necessity

3. Investigation

• Must be thorough; consider all evidence, pro and con.
• Must be timely:
  • Should be completed expeditiously
  • Occurs before discipline imposed
• Give accused opportunity to respond (Loudermill hearing).
• Allow union representation (Weingarten rights).

4. Fair Investigation

• Result must not be forgone conclusion.
• Test assumptions/bias.

5. Proof

• Level of proof is normally substantial evidence.
• Greater proof required for more serious allegations.

6. Equal Treatment

Equal treatment must be balanced against just application:

• Rules must be applied even-handedly and without discrimination.
• Rules must be applied justly.
• DON’T BLINDLY APPLY THE SAME RULE TO ALL SITUATIONS—MANAGERS/SUPERVISORS ARE EXPECTED TO EXERCISE JUDGEMENT

7. Penalty

• Must be fair, not arbitrary and capricious, or based on emotional response.
• Factor in length of service, prior performance history, and previous progressive discipline.

Source: Reprinted from the University of Iowa’s Office of the Vice President for Research, http://research.uiowa.edu/pimgr/?get=discipline
and http://research.uiowa.edu/pimgr/?get=7steps
(accessed September 15, 2011).

Another option for handling continued infractions is to consider putting the employee on an improvement plan, which outlines the expectations and steps the employee should take to improve performance. We address this in greater detail in Chapter 11 “Employee Assessment”. The plan is detailed and outlined and ensures both parties understand the specific expectations for improvement. If the improvement plan does not work, a progressive discipline process might be used.

Whichever direction is taken with disciplining of the employee, documentation is key throughout the process to avoid wrongful termination issues.

Alternative Dispute Resolution

Another option in handling disputes, performance issues, and terminations is alternative dispute resolution (ADR). This method can be effective in getting two parties to come to a resolution. In ADR, an unbiased third party looks at the facts in the case and tries to help the parties come to an agreement. In mediation, the third party facilitates the resolution process, but the results of the process are not binding for either party. This is different from arbitration, in which a person reviews the case and makes a resolution or a decision on the situation. The benefits of ADR are lower cost and flexibility, as opposed to taking the issue to court.

Some organizations use a step-review system. In this type of system, the performance issue is reviewed by consecutively higher levels of management, should there be disagreement by the employee in a discipline procedure. Some organizations also implement a peer resolution system. In this type of system, a committee of management and employees is formed to review employee complaints or discipline issues. In this situation, the peer review system normally involves the peer group reviewing the documentation and rendering a decision. Another type of ADR is called the ombudsman system. In this system, a person is selected (or elected) to be the designated individual for employees to go to should they have a complaint or an issue with a discipline procedure. In this situation, the ombudsman utilizes problem-solving approaches to resolve the issue. For example, at National Geographic Traveler Magazine an ombudsman handles employee complaints and issues and also customer complaints about travel companies.

Employee Separation

Employee separation can occur in any of these scenarios. First, the employee resigns and decides to leave the organization. Second, the employee is terminated for one or more of the performance issues listed previously. Lastly, absconding is when the employee decides to leave the organization without resigning and following the normal process. For example, if an employee simply stops showing up to work without notifying anyone of his or her departure, this would be considered absconding. Let’s discuss each of these in detail. Employee separation costs can be expensive. In the second quarter in 2011, for example, Halliburton reported $8 million in employee separation costs. [11]

Resignation means the employee chooses to leave the organization. First, if an employee resigns, normally he or she will provide the manager with a formal resignation e-mail. Then the HR professional usually schedules an exit interview, which can consist of an informal confidential discussion as to why the employee is leaving the organization. If HR thinks the issue or reasons for leaving can be fixed, he or she may discuss with the manager if the resignation will be accepted. Assuming the resignation is accepted, the employee will work with the manager to determine a plan for his or her workload. Some managers may prefer the employee leave right away and will redistribute the workload. For some jobs, it may make sense for the employee to finish the current project and then depart. This will vary from job to job, but two weeks’ notice is normally the standard time for resignations.

If it is determined an employee should be terminated, different steps would be taken than in a resignation. First, documentation is necessary, which should have occurred in the progressive discipline process. Performance appraisals, performance improvement plans, and any other performance warnings the employee received should be readily available before meeting with the employee. It should be noted that the reliability and validity of performance appraisals should be checked before dismissing an employee based upon them. Questionable performance appraisals come from the real-world conditions common to rating situations, particularly because of limitations in the abilities of the raters. [12] Reliability and validity of performance appraisals are discussed in detail in Chapter 11 “Employee Assessment”.

Remember that if the discipline process is followed as outlined prior, a termination for nonperformance should never be a surprise to an employee. Normally, the manager and HR manager would meet with the employee to deliver the news. It should be delivered with compassion but be direct and to the point. Depending on previous contracts, the employee may be entitled to a severance package. A severance package can include pay, benefits, or other compensation for which an employee is entitled when they leave the organization. The purpose of a severance plan is to assist the employee while he or she seeks other employment. The HR professional normally develops this type of package in conjunction with the manager. Some considerations in developing a severance package (preferably before anyone is terminated) might include the following:

1. How the severance will be paid (i.e., lump sum or in x equal increments)
2. Which situations will pay a severance and which will not. For example, if an employee is terminated for violation of a sexual harassment policy, is a severance still paid?
3. A formula for how severance will be paid, based on work group, years with the organization, etc.
4. Legal documents, such as legal releases and noncompete agreements
5. How accrued vacation and/or sick leave will be paid, if at all

The last topic that we should discuss in this section is the case of an absconded employee. If an employee stops showing up to work, a good effort to contact this person should be the first priority. If after three days this person has not been reachable and has not contacted the company, it would be prudent to stop pay and seek legal help to recover any company items he or she has, such as laptops or parking passes.

[1] Retail Council of Canada, “Securing the Bottom Line: Canadian Retail Security Survey 2012,” accessed January 31, 2017, https://www.pwc.com/ca/en/retail…/pwc-security-survey-2012-10-29-en.pdf

[2] Barry Fisher, “Targeting Prescription Drug Abuse,” Ventura County Star, March 6, 2011, accessed March 8, 2011, http://www.vcstar.com/news/2011/mar/06/targeting-prescription-drug-abuse/.

[3] “Employee Theft and Legal Aspects,” Net Industries, accessed March 8, 2011,http://law.jrank.org/pages/1084/Employee-Theft-Legal-Aspects-Estimates-cost.html.

[4] “Careers By the Numbers,” InfoWorld, October 2, 2000, accessed August 1, 2011,http://books.google.com/books?id=ST0EAAAAMBAJ&pg=PA93&lpg=PA93&dq=Careers+By+the+Numbers +InfoWorld+October+2,+2000&source=bl&ots=KU2eMTa3C3&sig=rU3s8ywYcc0Z kUbuydMO3wrO1Rc&hl=en&sa=X&ei=yoVsT6PfGYSw0QH11u3TBg&ved=0CCIQ6 AEwAA#v=onepage&q= Careers%20By%20the%20Numbers%20InfoWorld%20October %202%2C%202000&f=false.

[5] Catherine Smith, “Fired Over Facebook,” Huffington Post, July 2010, accessed August 1, 2011, http://www.huffingtonpost.com/2010/07/26/fired-over-facebook-posts_n_659170.html#s115752&title=13_Virgin_Atlantic.

[6] Rick Chandler, “Ex-Colts Cheerleader Sues Team Over Dismissal for Playboy Pics,” NBC Sports, May 11, 2011, accessed August 1, 2011,http://offthebench.nbcsports.com/2011/05/11/ex-colts-cheerleader-sues-team-over-dismissal-for-playboy-pics/.

[7] Jim Evans, “EEOC Finds Fault with Company’s No Fault Attendance Plan,” Zanesville Times, July 17, 2011, accessed August 1, 2011,http://www.businessmanagementdaily.com/19860/eeoc-finds-fault-with-no-fault-attendance-policies.

[8] Jim Evans, “EEOC Finds Fault with Company’s No Fault Attendance Plan,” Zanesville Times, July 17, 2011, accessed August 1, 2011,http://www.businessmanagementdaily.com/19860/eeoc-finds-fault-with-no-fault-attendance-policies.

[9] National Labor Relations Board website, “Administrative Law Judge Orders San Juan Company to Respect Employee Weingarten Rights,” March 28, 2011, accessed August 17, 2011.

[10] National Labor Relations Board website, “Administrative Law Judge Orders San Juan Company to Respect Employee Weingarten Rights,” March 28, 2011, accessed August 17, 2011.

[11] Brad Lemaire, “Halliburton Posts 54% Q2 Growth,” Proactive Investors, July 18, 2011, accessed August 1, 2011,http://www.proactiveinvestors.com/companies/news/16404/halliburton-posts-54-q2-profit-growth-16404.html.

[12] Jeff Weekley, Academy of Management Journal 32, no. 1 (1989): 213–22.