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Employee Conduct and Performance deals with:
1) the employer’s right to honest and fair service from its employees; and
2) the employer’s right to manage its employees’ performance.
In relation to employee conduct, circumstances giving rise to the need to consider the enforcement of employers' rights include:
- breaches of company policies and procedures by employees;
- dishonesty in dealing with company property, or theft by employees;
- breaches of the law that directly impact on a business in a negative way—for example, breaches of anti-discrimination/equal opportunity laws or trade practices laws;
- employees failing to carry out their duties, ie failing to perform their work in an efficient manner;
- actions by employees that do material harm to a company's business—for example, handing over confidential information; and
- criminal activity that may not involve an employee's work but which does have an indirect impact on the employee's employment role/position—for example, a conviction for fraud over a matter occurring some time earlier in the career of an employee who is currently employed as a financial controller in a business.
In relation to employee performance, it covers issues such as performance appraisal, promotion, demotion, and employee personal grievances.
Important points to note concerning Employee Conduct and Performance
Organisations are increasingly using formal performance assessment processes to assist them to comply with legal obligations affecting employees. That is, the results of the process are used to support decisions to promote, demote or dismiss employees.
However, it is arguable that doing so is more likely to assist the employee than the employer if a legal dispute between the parties arises, as it can be easier for the employee to demonstrate procedural or technical flaws in the process.
The impact of equal opportunity and unfair dismissal legislation is driving the increased use of assessment results to back up decisions that affect employees.
Equal opportunity legislation requires employment decisions to be made on the basis of merit, without being influenced by personal characteristics of the employee, such as gender, age, race, family responsibilities, etc.
Performance assessment results, if based solely on job performance, appear able to perform this role.
Care needed
However, great care is needed to ensure that assessors do not take the personal characteristics into account (either consciously or unconsciously) when making their assessments of performance.
For employers, this emphasises the importance of training assessors in how to do their job properly, particularly in terms of equal opportunity awareness and focusing on specific, observable job performance. An employer faced with a discrimination claim will need to demonstrate that appropriate training of assessors took place, and that the assessment system itself does not discriminate against groups of employees, either directly or indirectly.
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