Colleagues, we need to be clear and consistent with how we interpret and apply the terms that we use in our policies.
Today I specifically want to focus on the terms we use with regards to the engagement and termination of employees on the team.
Let’s start off with probation period and what that means to the employee. When we induct a new member, we sugar coat probation and say ‘during this time we will just be making sure you are settling in ok and at the end of the 3 months we will make a consideration about your salary’. Which many employees understand to mean, this time is just for me to become familiar with the environment and at the end of probation, I will get an increase in pay. Point one. You have raised expectations regarding increased salary in 3 months, which if not honoured, sullies trust and compromises the psychological contract between you and the employee. Point two. You have not emphasised performance expectations and will struggle to raise concerns about non-performance when you have not created a baseline. Point Three. You have not empowered the employee with the knowledge that probation is the only time in the employment contract when you can just be terminated without disciplinary process. Yes. All that is said is that, probation has not been successful, thank you for your interest, all the best with your future endeavours. That is unethical conduct on your part as the employer.
Speaking about termination and disciplinary process. Colleagues, please understand the process and the language of discipline. Some of the employment policies talk about ‘show cause’ as an initial step in registering the employer’s concern about some alleged or possible misconduct, and the employee may be written a letter saying, ‘show cause why disciplinary action should not be taken against you’. I would like to clarify the difference between show cause and disciplinary action. When you become aware of an incident, or an offence, you send this letter to the employee supposedly involved in that issue, asking the employee to give you a written account of what happened. This is like a preliminary, exploratory step. The employee’s response will demonstrate whether or not there was misconduct, and therefore whether or not disciplinary step is required. You would ordinarily give the employee the outline of your concerns/observations/allegations, and allow a reasonable time
The minute you use the word disciplinary, know the stringency of the procedure and standards of fairness prescribed by the employment legislation, and ensure you follow that to the letter. We talk about procedural fairness, and substantive fairness in this process. Did you follow the procedure step by step as prescribed, because if not, that is unfair, and even if the employee’s misconduct warranted dismissal, being found procedurally unfair makes you liable to whatever penalties apply to the claim of unfair dismissal. And substantive fairness just means the punishment fits the crime, to be simplistic about it, so you must ensure that your code of conduct provides a cascading set of penalties to suit increasingly serious offences, as you would have agreed during your internal consultations when you developed the disciplinary policy.
Colleagues, it happens sometimes that we fall out with our employees and we just want to dismiss them. There was no misconduct. Because misconduct has its own standards and procedures leading to termination. There are no performance issues. Because poor performance has its own standards and procedures leading to termination. So we should not try to use those two unless they are the real issue. If we just find that we want to dismiss someone simply because we don’t like them. Or they don’t fit in. Or their lifestyle offends us. Whatever the issue may be in our situations, there will be times when we want to part ways immediately and without any concern about good faith dealings, because of something that has triggered a deep emotional reaction from us.
Let us distinguish between softer personality based ‘offences’ that are not in our code of conduct, or anywhere else in our employment policies, and, actual, actionable offences that are documented or can be documented. We can’t camouflage issues and push people out and call it disciplinary action. In the next few weeks we will look at the disciplinary process in closer detail, and the various ways in which we can find ourselves on the wrong side of the dispute mediation process. In the meantime, you can send your comments to me at firstname.lastname@example.org”