Natasha Hawker | How to exit non-performing staff

This document defines the process of exiting people who are not performing within your business while avoiding costly legal breaches. This is system to fire someone legally and take action without feeling afraid you might be sued.

System Architect: Natasha Hawker
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System Details

Step 1: Have all the foundation steps in place.

  • Review and complete the checklist "Checklist_WhatDoIDoIfAnEmployeeIsNotPerforming.pdf" under the attachments section below.
    • Have evidence – recorded calls, instructions that you had to repeat multiple times etc.
    • State your expectations – tell them what you expect, what success looks like.
    • Communicate with the employee that they are not performing and not meeting your expectations.
    • Confirm the expected levels of performance. Ensure they are reasonable.
    • Ask why performance is sub-par, find out if there’s a valid reason for it.
    • Ask whether there are any extenuating circumstances for the performance.
    • Arrange for additional training to adjust the performance.
  • Legally you need to offer the employee a support person if going through any of the following conversations: redundancy conversation, restructure or performance management conversation, or misconduct conversation.
    • If the individual is positive that they don’t want a support person, get them to sign a document that they’ve waived this right. If they are not prepared to sign that document, note that in your documents.


Step 2: Steps prior to a performance management meeting.

  • Counseling sessions – suitable for minor issues.
    • Employer to review the performance of the employee after the counseling session.
    • A counseling session can occur a couple of times before moving to more formal warnings.
    • Documentation is important – make a file note of the sessions that you’ve had.
  • Warnings – no more than 3 strikes.
    • It is recommended that all warnings, including verbal, to be documented.
    • Prior to the final warning, and potential termination meeting, the employee must be in no doubt of the seriousness of the situation and that termination can be an outcome.
  • Training – it is imperative that further training or support has been offered, including additional external training or mentor allocated.
  • Instigate a without prejudice conversation – this is an alternative, off the record mutual separation discussion.
    • In this case, you must get the employee to sign a date of release, that is sought by a lawyer.


Step 3: Script the performance management meeting.

  • Plan the meeting. Script the conversation and practice it with someone else.


Step 4: Conduct a performance meeting.

  • Ensure that you are prepared, that all paperwork has been completed as much as it can be prior to the meeting.
  • Plan the meeting, have notes to guide you to be sure you cover everything.
    • Suggestion! Ideally, have someone available to take notes.
  • Book a quiet and private meeting space.
  • Book the meeting with the individual stating it is to discuss their performance and they are welcome to bring a support person.
  • Explain at the beginning the purpose of the meeting and the roles of the participants.
  • Walk through each of the performance issues giving the employee a chance to respond. Where appropriate, provide evidence of the current performance level being achieved. 
  • Ask employee whether there’s anything that would assist them to improve their performance. Consider all requests, and then confirm what’s possible and what’s reasonable.
  • Explain the required level of performance and the timeline to be reached.
  • Summarise the outcomes of the meeting and next steps, and if the next meeting is termination as a potential outcome.
  • After the meeting, the Minutes should be countersigned.
    • If the employee is unwilling to do this, make a note of this fact.


Step 5: Deal with the emotional side.

  • Be prepared and stay calm.
  • Offer a short break.
  • Always have tissues.



Supporting Notes

Different type of non-performers in your business.

  • Non-performance: the employee is not performing adequately in their role.
  • Misconduct: the employee has an inappropriate attitude.
  • Gross-misconduct: an employee verbally or physically insulted someone, or committed fraud.


Reasons why we hire non-performers:

  • Candidate’s skills are not assessed effectively.
  • Hiring Manager lacks interview skills or technique.
  • The employee does not have an accurate job description.
  • The manager does not communicate effectively.
  • The manager does not provide timely and frank feedback.
  • Sub-par performance is not dealt with effectively.