Tackling the ‘problem employee’

Jun 01, 2018
When poor performance or unacceptable behaviour can no longer be tolerated, employers must proceed with caution.

Regrettable though it may be, there are occasions when – despite one’s best efforts – the ‘problem employee’ must be tackled. In such circumstances, adherence to proper procedure is influential in the majority of court determinations on such matters. Indeed, such judgments frequently focus more on the procedural provisions than the merits of the case.

In 2015, the Workplace Relations Commission (WRC) issued instructions to employers availing of its services under such circumstances. The instructions stated that, prior to the hearing, employers “must set out the facts of the events leading to the dismissal including, where relevant, disciplinary meeting(s) held, investigation undertaken, disciplinary hearing(s) conducted, internal appeal(s) conducted...”

This instruction goes to the heart of many unfair dismissal judgments, as the Courts have always taken the view that procedural fairness is a key dimension in its determinations. Consequently, to get the best out of the all-important hearing and to avoid unfavourable findings down the road, it is advisable that disciplinary interviewers proceed with caution before, during and after such interviews.

Before the disciplinary interview

An inadequate investigation of a situation on the part of an employer may give rise to a dismissal or disciplinary action being deemed unfair. Accordingly, a reasonable and fair investigation of the matter should be undertaken prior to a decision to initiate disciplinary proceedings or dismissal. An appropriate investigation will involve establishing the facts of the case, the range of relevant documents on the employee’s personal file (e.g. previous warnings, training received, appraisal records etc.), the required and average performance standards on the job, and the organisation’s disciplinary procedure and precedents. Indeed, it may be that, having completed the investigation, one decides to take no action or to settle for an informal ‘off the record’ counselling session.

Depending on the nature of the alleged offence, the timing of the interview will normally be close to the incident. However, it shouldn’t compromise management’s responsibility to do the all-important preparatory work. In some instances, a cooling off period may be required to ensure that all parties approach the interview rationally rather than emotionally.

If the alleged offence is adjudged to be of a serious nature, the employee should be advised immediately of the situation in the presence of her or his representative or nominated colleague and given an opportunity to respond. The employee in question may even be suspended (with pay) pending the investigation into the alleged misconduct.

Management should then plan the interview structure and agree on the key questions. This can entail writing down all the facts and being prepared to substantiate each one. One should also note any assumptions and be prepared to inquire into them. Decisions will need to be taken as to the personnel to be involved in the process, ensuring that no-one plays two roles in the process (for example, witness and investigator). Where issues have reached a serious stage, at least two management representatives should be present to ensure correct and consistent application of the rules and procedures. One should also be clear as to who has the authority to formally warn or dismiss staff. The Government-issued Code of Practice on Grievance and Disciplinary Procedures recommends – in addition to the employee’s right to be accompanied by a representative – that the employee concerned be allowed to confront or question witnesses. Notably, a recent High Court judgment indicated that where serious allegations are being made that could result in dismissal or reputational damage, a right to legal representation also applies.

Having completed the preparatory work, the employee should be advised of the interview’s time, place and purpose, and their representation entitlement. Where appropriate, the employee should also be provided with supporting evidence from the investigation.

During the disciplinary interview

Don’t be cosy, yet don’t be rude at the disciplinary hearing – strike the right balance. In any interview, the interviewee deserves a fair hearing. You don’t want to intimidate the employee to the extent that you only hear her or his side of the story when it is told by her or his legal representative at the WRC or the Labour Court. Management should make the opening statement. This can take the form of advising those present that – without pre-judgement – it is an interview under the organisation’s disciplinary procedure, the stage the procedure is currently at, one’s role relative to the procedure, and the function of other people present including ‘on call’ witnesses. The structure of the meeting should then be outlined.

The structure of the meeting entails the aforementioned opening statement and posing questions. The employee and her or his representative will then reply, question witnesses and produce their own witnesses. One can then further question the employee and her or his witnesses. The employee should also be encouraged to highlight any issues she or he considers important, including any mitigating circumstances.

Having determined whether there is any mitigating evidence, the action that management takes depends on such circumstances and the seriousness of the offence. When determining the action to be taken, the test of ‘reasonableness’ (i.e. does the punishment fit the crime?) must be borne in mind and should take account of these mitigating factors. In effect, this means that every situation must be evaluated on its own merits – though one must also be careful to be consistent, ensuring that one individual isn’t victimised or disciplined for behaviour that is tolerated elsewhere in the organisation.

Prior to closing the disciplinary meeting, management should summarise to ensure that everyone understands the key issues. This summary should reflect the key points of the original case, the employee’s reply, the changes to the original case that have arisen during the meeting, the circumstances pertaining to the case as it now stands and the matters that warrant consideration or investigation during the adjournment. After this adjournment, one reconvenes the meeting to convey the decision, outline the outcome and state the action to be taken. Should the evidence point toward disciplinary action, management’s position should be explained to the employee who should be made fully aware of her or his shortcomings, the nature of the improvement required and the means for its achievement, together with the consequences of future transgressions. This is also an appropriate time to remind parties of their right of appeal.

After the disciplinary interview

After the disciplinary hearing, management must write up the records, advise relevant personnel, and send copies to appropriate parties (the human resources department, the employee and her or his representative, for example). Accurate records should be kept of all disciplinary issues but in particular, they should set down the dates, parties involved, the original case, the changes to that case arising in the proceedings, management’s action and its relationship to previous actions, and the particular circumstances of the case and how they affected the final action.

Of course, good managers will work to prevent any deterioration in relationships. Disciplinary action can be a source of discomfort and resentment. While management’s final action may be fair and reasonable in the circumstances, it may not endear one to staff. Hence, the disciplinary action should be followed up to ensure that the problem does not arise again and that the process has been approached in a manner designed to help avoid the unacceptable behaviour or performance from recurring. Finally, the slate should be wiped clean in due course (if appropriate), as warnings should remain on an employee’s record only for as long as is consistent with the nature of the offence and in accordance with the organisation’s rules and practice.

Gerard McMahon is Managing Director at Productive Personnel Ltd., a HR consultancy and training company.

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