The employment relationship – when things go wrong…

At the start of the employment relationship, even though the parties don’t know each other, a fiduciary duty is already 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 implements a written employment contract with each employee on the first day of employment – note that it can be argued that employment started during the interview process, as the employee has to be honest as to the qualifications and abilities the employee has.

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 that specifies the employee’s duties and employer’s expectations.  The employee should also be aware of the consequences of not fulfilling these duties.

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 in the employment relationship, in order to mitigate risk and be best positioned going forward.  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:

Conflict

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 and negatively impact on business operations.

Solution:  Have a consultation with the parties and assist to seek a solution best suited for all parties, to avoid further disturbances in the workplace.

Misconduct

Misconduct can be described as an employee’s failure to act according to the employer’s rules and policies, or failure to fulfil his/her duties.  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.

Solution:  Every workplace must have a relevant disciplinary code and employees must be aware of it.  Be sure to keep an attendance register and minutes of the meeting when discussing the disciplinary code with the employees. 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, or in cases of serious misconduct proceed directly 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.  If there is a possibility of dismissal, a disciplinary hearing must be held prior to dismissing an employee. The employee should be given an opportunity to state their case during a fair disciplinary process. If the misconduct has led to the irreparable breakdown of the trust relationship, the employment relationship may be terminated.

Poor work performance

Poor work performance refers to an employee’s incapacity when 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.

Solution:  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 then monitored for a reasonable period of time and offered further training and guidance as needed.  Assess the employee’s improvement during a follow up consultation.  If the employee does not improve sufficiently, a formal disciplinary process can follow which can lead to dismissal.

It is important to maintain good and healthy working relationships. Boundaries should be set from the beginning of the employment relationship 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.  Be sure to keep an attendance register and minutes of the consultations with the employee.

Contact the LWO for any advice or assistance!

Not an LWO member yet? Take a look at our membership packages.