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In New Zealand, performance improvement processes can be tough to run legally and effectively by any employer. There are many requirements for a fair and reasonable process. While these are beneficial for employees and help ensure that both sides show good faith, there is no denying that businesses can make a lot of mistakes when commencing a performance improvement process. This article sets out three of the most common mistakes, including:

  • mistaking performance improvement for misconduct; 
  • not giving an employee reasonable time to improve; and 
  • when the business itself contributes to poor performance.

Mistaking Performance Improvement for Misconduct

Fundamentally, performance improvement aims to make the employee perform at an adequate or better than adequate level. The goal is to develop a valuable staff member, and hence, there is no need to dismiss them. This positive approach underpins the whole performance improvement process. Accordingly, you should assume that the employee can lift their game and become a strong performer with the right support and process. 

Commonly, employers mistake performance improvement for misconduct. However, they are different issues, and you should treat them as such. With misconduct, an employee has done something allegedly or clearly wrong. Accordingly, the process for managing serious misconduct proceeds on that basis. 

On the other hand, with performance improvement, employees have not necessarily let themselves down and can improve with a good and positive process. Importantly, the expectations on you, as an employer, change. Rather than give the employer the chance to explain their case in the event of misconduct, you should be clarifying your work expectations and giving employees the training and support they need to meet those expectations. 

Not Giving Enough Time to Improve Performance

A common mistake in performance improvement processes is not giving the employee a fair or reasonable amount of time to improve their performance. In discussing underperformance, remember that you are clarifying expectations on their work and quality of work. This should involve having a plan in place for them to lift their performance. 

It is unreasonable to expect the employee to lift their game overnight. In fact, you should allow multiple months, with regular check-ins, for an employee to have the time to improve their performance. The actual length of time that is reasonable will differ based on the nature of the work and the complexity of the tasks. However, usually, employers underestimate how much time to give employees in these circumstances. 

When the Business Itself Contributes to the Problem

Additionally, another common problem is when the business or you, as the employer, contributes to the performance problem. This is a double issue and it makes it: 

  • unfair and unreasonable to punish the employee for poor performance; and 
  • challenging for the employee to lift their performance. 

Watch out for the following sorts of issues:

  • when the employee does not have clarity about their role; 
  • when the employee does not understand or has not been told what their different tasks are; 
  • if there is reasonable confusion around what an employer’s task is, such as receiving contrasting instructions; 
  • where there are misunderstandings or miscommunication between the employee and their immediate manager or the business; and
  • if the job structure and the team are preventing the employee from doing their job to a high standard. 

Key Takeaways

A performance improvement process can be tough to get right. Still, there are significant advantages if your business can do so. However, you should be on guard for common mistakes with this process. Ensure you understand how to frame it as a positive and optimistic exercise, give clear and reasonable expectations, and allow the employee enough time to achieve those expectations. If you have any questions about how to run an effective performance improvement process, contact LegalVision’s employment lawyers on 0800 005 570 or complete the form on this page.

Frequently Asked Questions

Can poor performance be an example of misconduct?

No, misconduct is a specific legal concept and is usually separate from poor performance. In very rare circumstances, extremely poor performance can result in misconduct. However, usually, they are separate concepts and need to be dealt with separately. Discuss with a lawyer if you are unsure if an employment problem is misconduct or poor performance.

Is there a minimum period of time to give an employee a poor performance plan?

Yes, you must give an employee a reasonable period to change their performance and lift their game. What is ‘reasonable’ will depend on the nature of the role and tasks and how supportive your business is in helping the employee. You should generally factor in at least two months for an effective process.

Can an employee raise a personal grievance if there are mistakes in the process?

Yes, if an employer does not run a fair or reasonable poor performance process, then an employee is entitled to raise a personal grievance against the employer.

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