Here is a quick guide to performance managing your employees in accordance with the principles of procedural fairness

Before taking any disciplinary action, you should meet with the employee to raise the areas of poor performance.
The employee should be provided with reasonable notice of a performance meeting and given the opportunity to respond to the performance issues raised.
You should also identify a reasonable timeframe where the employee’s performance will be reviewed to determine whether the performance has improved.
If the employee’s performance does not improve, you will need to consider whether it is appropriate to make adjustments to the performance improvement plan, offer more support and/or training, issue a warning letter, and/or follow a show cause process.

Arranging a meeting
Prior to conducting a performance meeting, the following is recommended for procedural fairness:

1. Request the employee attend a performance management discussion. Advise of the location and time in advance providing reasonable notice;
2. Offer the employee the opportunity to bring a support person (there is no positive obligation on the employer to offer a support person. However, by making the offer it will be clear that there has been no unreasonable refusal of a support person); 
3. Prior to the meeting:
   a. draft a clear outline of the identified performance issues that you will be discussing. Group these issues together (ie: teamwork, client service, etc); and
   b. prepare for the meeting – know the issues, provide examples, refer to your outline to stay on track.

During the meeting
When conducting a performance meeting, the following is recommended for procedural fairness:

1. When commencing the meeting, explain the structure of the meeting, for example:
   a. introduce all parties and their role, eg. the manager, support person etc.;
   b. identify the employee’s performance issues;
   c. provide the employee an opportunity to respond; and
   d. offer a commitment from management as to how you can support the employee to improve.
2. When providing the employee an opportunity to respond, the employee is entitled to confer with their support person privately before responding;
3. Agree on how to go forward by developing a structured performance management plan with:
   a. performance issues;
   b. measures to be taken (including any training, development and/or mentoring);
   c. review periods; and
   d. expected outcomes.

After the meeting
At the end of the meeting or shortly after, the following is recommended for procedural fairness:

1. All parties need to commit and sign off on the performance management/improvement plan. The employee must receive a copy of the plan.
   Note: The employee should be given an opportunity to have ‘buy-in’ to the performance management/improvement plan. While the manager may outline some necessary points, ask if the employee has any further suggestions. Let the employee have a few days to consider the draft plan before finalising it.
2. If the employee’s performance does not improve within the timeframe, disciplinary action may need to be taken.

You should document the performance or disciplinary process, particularly the performance management meeting, as you may need to rely upon this information to minimise any risk against an adverse action or unfair dismissal claim in the future.

Key takeaways
Managing performance should involve:

1. Outlining to the employee the expected standards regarding performance and what the possible consequences may be if they do not improve;
2. Ensuring ‘due process’ for resolving performance issues;
3. Ensuring discipline is used in a constructive way and provides an opportunity for improving performance issues;
4. Compliance with legislative requirements; and
5. Consultation with any relevant parties.

Contact Employer Assist
If you require any advice on the matters set out in this document, please contact Employer Assist on 1300 735 306 or aaaa@employerassist.com.au

This document is intended for general information purposes only and should not be regarded as legal advice. Please contact Employer Assist by Industry Legal Group if you require legal advice.