Your business – what documents do you need?
How do these documents interrelate?
Working with these documents
Your business – what documents do you need?
During the Employee Conduct and Performance process you may need to refer to, or supply, the following documents, in this order:
- Employee Conduct and Performance policy(ies)
- Contract of employment
- Award or Agreement
- Forms
- Correspondence
A list of the documents in each of these categories is as follows:
(1) Policies
You may have other policies which you should refer to.
(2) Contract of employment
The Contract of Employment is the basis of the employment relationship. The sample document (Contract of Employment or Engagement Letter) should be modified to suit individual employees and should be referred to, for example, the notice period that is appropriate.
(3) Award or Agreement
Wages and conditions for an employee can be specified in one, or a combination of, the following documents:
- Contract of employment
- Collective Agreement
-
-
Individual Transitional Employment Agreement (ITEA) (available only from the commencement of the Workplace Relations Amendment (Transition to Forward with Fairness) Bill and only for those employers who as at 1 December 2007 employed at least one worker on an AWA, pre-reform AWA, individual preserved State agreement or an individual Victorian employment agreement)
-
Awards generally apply to many businesses, whereas a Collective Agreement will generally apply only to one business. Conditions applicable to your own employees can be covered in an award, collective agreement, or you can have an individual AWA or ITEA (as applicable), or an individual written contract of employment, for each individual employee.
(4) Forms
(5) Correspondence
-
Record of meeting
-
Demotion letter
-
-
Probation terminated letter
-
Letter regarding termination
-
Christmas party letter to employee
-
Summary dismissal letter
-
Warning letter
-
Statement of service
(6) Checklists
- Performance management checklist
How do these documents interrelate?
The contract
An individual written contract is a document drafted to record a proposed agreement between a particular employer and employee. The individual written contract can also fulfil the purpose of consolidating the special or particular terms and conditions of that particular relationship into one document.
If there is no written contract of employment, or the written document doesn’t address all relevant conditions, relevant terms relating to conduct and performance will be ‘implied’.
There are a number of principles that will be implied into employment relationships. Examples of these principles are:
- the employee shall perform his work in a competent manner
- the employee shall obey lawful commands
- both the employee and the employer shall demonstrate mutual good faith and not act to unreasonably destroy the employment relationship
- the employee shall properly account for the employer's money which comes into the employee's hands in the course of employment.
These rules apply to all employment relationships and it would be unlikely that an employer would wish to exclude them.
Enforcing employers’ rights
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
- 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, an undisclosed 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.
Apart from the written or unwritten terms in an employment contract, awards and agreements may specifically cover such issues.
When dealing with employee conduct, there are usually two broad categories, misconduct and 'serious misconduct'.
There is no overriding definition of what constitutes serious misconduct, but it will usually include such actions as theft, fraud or assault by the employee while in the course of employment, the employee being intoxicated at work, or the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment. Summary dismissal is usually justified in the case of serious misconduct.
The various state jurisdictions have also generally determined such actions by an employee as serious misconduct. There are, however, other forms of misconduct which may effect the employee's employment which do not necessarily justify summary dismissal.
Many awards and enterprise agreements provide that an employee terminated for reasons of inefficiency, neglect of duty, malingering or misconduct may preclude or alter the payment of certain entitlements on termination, eg annual leave loading.
Policies
Policies may be drawn up by employers to cover matters of conduct and performance. These policies should be communicated to all relevant employees. The drafting of policies is important. Poorly drafted policies may create unintended liabilities.
Correspondence
Correspondence is used to communicate with employees either in a proactive or reactive manner.
Proactive correspondence draws individual employees’ attention to issues of conduct and performance, and sets out parameters.
Reactive correspondence is written in response to a particular issue or event, for example advising of an employee’s promotion.
Working with these documents
1) When dealing with employee conduct and performance it is helpful to have appropriate policies in place. Your policies will establish the standard of performance and level of conduct required.
2) Refer to any relevant awards which may regulate the employment of this type of worker and which may specifically deal with conduct and/or performance. In the past, some awards have attempted to restrict an employer’s power to measure performance and to discipline conduct.
3) Refer to any workplace agreements (such as AWAs, ITEAs or collective workplace agreements) which may specifically deal with conduct and/or performance for this type of worker.
4) Standard forms are used to ensure that performance appraisal or an employee conduct review is conducted in a regulated manner and that no steps in the process are missed.
5) Correspondence should be used to communicate with the relevant employee(s) to ensure that any issues are documented ‘in writing’.
| 
