Managing Workplace Behaviour and Performance – Fast Facts

Managing complaints

If as a supervisor, you have received a complaint, conduct a preliminary assessment to determine if further action is required. This assessment will help determine what the allegation is about, whether it has substance and whether it justifies the commencement of action such as an underperformance process or misconduct investigation, or whether it can be dealt with in a different or less formal manner. An assessment could be as simple as talking to individuals or reviewing emails or may require a more in-depth interview approach. See the ACTPS Guide to Managing Workplace Behaviour for more information.

What is misconduct?

Misconduct occurs when an employee fails to meet the obligations outlined in Section 9 of the Public Sector Management Act 1994 or engages in conduct that has brought, or is likely to bring the Directorate or the ACTPS into disrepute. Examples of misconduct include: bullying, harassment and discrimination, unauthorised absence without satisfactory reason and making knowingly false allegations against another employee.

What is serious misconduct?

Serious misconduct is misconduct of such a nature that it would be unreasonable or inconsistent for the employer to continue the employee’s employment and usually warrants termination or suspension without pay. Examples include: engaging in theft or fraud, assault or being intoxicated at work, conduct that causes imminent risk to health and safely of a person and/or the reputation, viability or profitability of an organisation or a refusal to carry out a lawful and reasonable instruction that is consistent with the employment contract.

What is remedial action?

Remedial action is a means of resolving performance or behaviour issues at a low or informal level. Remedial action is the preferred approach for responded to minor, less serious matters. Remedial options include:

• Mediation, coaching, counselling or mentoring;
• Development options – e.g. re-training and education, personal development, increased supervision and action plans to improve performance; and
• Employment options – e.g. changes in shift or duties, or transfer to other duties

When should I use remedial action?

If the incident is minor, does not appear to amount to misconduct, and there are known facts, the manager can opt to resolve the matter through remedial action. however, not all allegations can be dealt with through remedial action. Cases involving serious allegations, where there are contested facts, or where non-disciplinary action has been tried in the past but failed, may be more appropriately dealt with through the underperformance or investigation processes outlined in ACTPS Enterprise Agreements.

Keeping records

If you are providing performance feedback, even at an early and informal stage, it is advisable to take notes as a record of the conversation. All correspondence with an employee, who is the subject of misconduct a allegation or unsatisfactory performance issues in the workplace, should be documented. It is extremely important to keep all correspondence, and document all conversations and actions taken to avoid any dispute between the parties, in case a disagreement between versions of events arises.

When is an investigation necessary?

While an investigation should not usually be the first option, there are a number of situations where it is appropriate, for example:

• the alleged behaviour, if substantiated, would be sufficiently serious to justify a sanction as outlined within the ACTPS Enterprise Agreements;
• the allegations are serious and there is disagreement about what happened and little prospect of other remedial action being agreed to or being practicable;
• the alleged behaviour is consistent with that which constitutes a criminal act; or
• the allegation/complaint is indicative of a pattern of behaviour by the employee, especially where the employee has been subject to other disciplinary or remedial action for the same kind of matter in the past.

Who should conduct an investigation?

Investigations will be conducted independently by the Public Sector Standards Commissioner, through an officer of the Professional Standards Unit, Workforce Capability and Governance. Their role is to undertake a factual investigation to determine, on the balance of probabilities, whether or not the allegations are substantiated, not to recommend or impose a disciplinary action. The Public Sector Standards Commissioner or the Professional Standards Unit may, if appropriate, approve the use of an investigative provider from the ACTPS Administrative Review and Investigations Panel (ARIP).

What is bullying?

Bullying is repeated unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety of those workers. It can be perpetrated by an individual or a group. As well as creating a risk to health and safety, bullying can impact an organisation through reduced productivity, staff turnover and legal costs.

Reasonable management action

It is important to differentiate between the legitimate authority of a manager/supervisor and work bullying. All employers have a legal right to reasonably direct and control how work is done, and managers have a responsibility to monitor workflows and give feedback on performance. There will be differences in opinion, conflicts and problems in the workplace however managers/supervisors should keep in mind the manner, tone and motivation of their actions, as this will be perceived by staff. While an action may be reasonable, it also needs to be carried out in a respectful manner that does not humiliate or intimidate other employees.

Counselling

Counselling is a remedial option and means of improving behaviour or resolving conflicts, not a form a discipline. Counselling may take the form of an informal conversation regarding general or minor performance or behavioural issues, or may be undertaken more formally as part of the underperformance or misconduct processes. Regardless of the context in which it takes place, counselling is an action undertaken by a manger in response to some form of issue, complaint or behaviour, and managers should therefore ensure that they create and retain a written record of all counselling undertaken.

Behaviour outside the workplace

There are some instances where it is appropriate to address employee behaviour that occurs outside the workplace and out of business hours. This will depend upon the nature of the conduct and its relation to the employment of the individual. Conduct that is apparently unrelated to the performance of an employee’s duties may amount to misconduct if there is a clear and relevant connection between the employee’s out-of-hours conduct and their employment; and their conduct was incompatible with the employee’s duty as an employee, or was likely to cause serious damage to the employment relationship.

The role of a support person

A support person is a third party, including an employee’s friend/family member or union representative who may be present during interviews and who is not a potential witness, has not agreed to assist any other witnesses to the investigation and has undertaken to respect the confidential nature of the interview.

The support person can assist by providing emotional support and reassurance to the employee, taking notes during the interview, asking clarifying questions or explaining questions and processes to the employee and requesting breaks. While a support person can, where appropriate, advocate on behalf of the employee, all parties must remember their obligation to participate in good faith, as set out under Section H (Workplace Values and Behaviours) of most ACTPS Enterprise Agreements.

Underperformance

When a manager/supervisor assesses that an employee’s work performance continues to be below expected standards, concerns should be raised to the employee as soon as the concerns arise. The manager/supervisor should offer the employee support and advice to overcome these concerns. Where an employee’s work performance continues to be below expected standards despite previous counselling and/or discussions regarding the concerns, a manager/supervisor should advise the employee in writing of the assessment and reasons for it, and give the employee an opportunity to respond in writing on the assessment. Following this, a series of steps may be taken to manage the employee. The first of these is implementation of an Action Plan, which is intended to improve performance to the expected standards.