All employers want the best out of their employees.
It is understood that when employees’ conduct or performance standards slip, employers need to be able to manage employees’ conduct to allow them the opportunity to improve.
If insufficient improvement is made, employers may need to know how to deal with the situation fairly, which may include dismissal.
In managing the employee’s conduct and performance, the employees must be aware of:
- the standard of behaviour that is expected of them
- behaviours that would be constituted as misconduct, poor performance or capability
- disciplinary or performance policies which apply to them
Practical difficulties due to various pandemic restrictive measures
It is noted that the past and the present movement control order (MCO) or other restrictive measures like CMCO and RMCO have significantly affected the way in which many workplaces operate, including how employers deal with disciplinary and performance issues.
Many employers may, consequently, find it difficult to fully implement the policies set out in the Employees’ Handbook or such companies rules and regulations, depending on the extent to which their workplaces have been disrupted by the new norm, in order to ensure that any procedures carried out is fair and reasonable.
Difficulties that employers may face include:
a) practical difficulties in conducting pre-inquiry investigations
b) practical issues associated with convening a domestic inquiry, whether remotely or face-to-face
c) staffing challenges if managers, who would normally be responsible for conducting investigations or chairing disciplinary and performance hearings, are working from home, or are absent from work
d) ensuring that disciplinary and performance processes are dealt with without delay, despite potential logistical and staffing issues
e) mental health considerations of staff members, generally, when it comes to disciplinary and performance procedures at this time, as feelings of stress and anxiety are likely to be more acute compared to other times
Disciplinary policy or performance policy
The court had, in the past, considered such Employees’ Handbook adopted by the employers in dealing with disciplinary and performance procedures while we do not have any such national guidance nor statutory rules.
In the event of uncertainty about the fairness of a procedure, such rules may be recognised and followed by the industrial court in scrutinizing whether dismissal was carried out fairly.
Start with an informal meeting
Having said that, many potential disciplinary or grievance issues could be resolved informally. A quiet word is often all that is required to resolve an issue.
However, if an issue cannot be resolved informally then it may be pursued formally. This Employees’ Handbook or such companies rules and regulations sets out the basic requirements of fairness that will be applicable in most cases; it is intended to provide the standard of reasonable behaviour in most instances.
Employers would be well-advised to keep a written record of any disciplinary or performance cases they deal with.
Organisations may also wish to consider dealing with issues involving bullying, harassment or whistleblowing under a separate procedure.
More comprehensive advice and guidance in dealing with disciplinary and performance situations would often be helpful in both general terms and in individual cases.
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