Employment relationship – what can go wrong?

At the start of the employment relationship, the parties don’t know each other, but already a fiduciary duty is in place that requires the employee to act in good faith and in the best interest of the employer. It is important that the employer implement a written employment contract with each employee on the day employment commences. A written employment contract creates clarity by confirming the terms and conditions of employment agreed upon and protects the employer in terms of the employment relationship going forward. Take care to include a job description listing the employee’s duties and employer’s expectations.

The employment relationship is a relationship of trust based on mutual benefits and respect. As a business owner, the employer should always anticipate what can go wrong with regards to the employment relationship, in order to be best positioned going forward and mitigating risk. Poor work performance, conflict, misconduct, and a breach of trust can place this relationship in jeopardy and employers should take proactive steps to regulate the employment relationship and protect their rights.

The following issues can cause a breakdown of trust in the employment relationship:

The workplace is a very diverse environment in terms of culture, religion, beliefs, values, political views, frames of reference, work ethic, opinions, etc. Everyone won’t always get along with each other and when conflict arises, the employer should step in and assist to resolve the conflict before it escalates or starts to affect more employees.

Misconduct can be described as an employee’s failure to adhere to the rules and policies of the employer. In basic terms, misconduct is a behaviour issue of the employee. Such behaviour is normally deliberate or negligent, and employees can be held accountable for their actions. Misconduct can take various forms, including theft, fraud, dishonesty, insubordination, absence from work without permission, etc.

Every workplace must have a relevant disciplinary code. The disciplinary code is essential in ensuring that there are clear rules in the workplace, with appropriate sanctions, that employees can follow. When these rules are violated, the employer can apply progressive discipline. In cases of serious misconduct employers can directly proceed with a disciplinary hearing. It is vital to always follow the correct procedure, as in failing to do so can lead to dire consequences with a huge financial impact.

Poor work performance refers to the incapacity of an employee, in that an employee fails to reach and maintain the employer’s work performance standards in terms of quality and quantity. All employment contracts imply that the employee undertakes to perform according to the reasonable, lawful and attainable work performance standards set by the employer. Should the employee fail in this duty, despite assistance to reach the required standard, the employee is said to be incapable, and the employer has the right to dismiss him/her subject to following the correct procedure. Poor work performance involves a consultation process where the employee is informed of shortcomings and provided with training and guidance to achieve the desired outcome. The employee is monitored for a reasonable period of time and offered further training and guidance as needed. If improvement is not sufficient, a formal disciplinary process can follow which can lead to dismissal.

It is important to keep a good and healthy working relationship in place. Boundaries should be set from the beginning of the employment relationship in order to avoid any uncertainties going forward. Keep the communication lines open for all parties to address any issues which may arise. Employers should take care to follow the correct procedures when taking disciplinary action or holding consultations.