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Last updated: 24 September1996
Managing poor performance - The Essentials 1
Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.
Introduction
The Australian Public Service (APS) has undergone significant reform to its structures and procedures which has placed greater emphasis on an efficient, professional and accountable public service. The demand on managers to improve performance is more urgent than ever before. Increasingly, line managers are expected to take more responsibility for their people and other resources.
As in all organisations, the APS has a small number of people who, for a variety of reasons, are not contributing at an effective level. It is essential for the APS to be able to manage and resolve problems where people are performing poorly. Managers need to proactively address these problems in the early stages.
Managers should be fostering a culture where everyone is accountable for what they contribute to the productivity and efficiency of the APS.
Dealing with continuing poor performance, which might result in the termination of a person's employment, is one of the most difficult tasks a manager will have to face. Many delay the decision because of fear of the process. However, it is also necessary for you as a manager to recognise your obligations to your work unit and the effect that an under-performing person has on the well-being of the rest of the team and the effectiveness of their work output.
Based on the data provided by APS agencies to the PSMPC from May 1993, the Inefficiency procedures were highly successful in avoiding long and protracted processes and, in appeal cases, obtaining a high percentage of confirmed retirements. Of the 99 cases reported to the present:
- 87 per cent were retired before the end of their formal assessment period. Another three per cent were retired at the end of the assessment process; and
- 10 per cent were reduced in classification.
Of the 25 appeal cases dealt with by the MPRA and the Industrial Relations Court during the same period, only 3 were successful.
In 70 percent of retirement cases, the time taken from the issue of the formal warning to exit from the Service was five weeks or less. In each of these cases, retirement was achieved with consent.
As a manager dealing with a poor performer you should:
- initially seek to improve performance by offering training, coaching or alternative placement; but
- if this fails, you should not delay beginning the inefficiency process.
The basic steps you will need to take are set out in the next two pages. Details of the legislation and supporting material are provided at the end of the booklet.
Performance Appraisal
A regular system of performance appraisal is a useful element in managing performance. Performance agreements are an excellent means of establishing expectations about what work standards are to be met and the regular reporting required can provide the opportunity for performance difficulties to be brought to light and discussed. Most rating systems allow for continuing poor performance over more than one appraisal period to trigger the inefficiency process.
The responsibilities of managers
Effective team performance is dependent upon the commitment and willingness of managers to actively manage the performance of their people and promptly address problems when they arise.
Where informal mechanisms are not successful in restoring performance, the inefficiency procedures provide a formal mechanism for you to deal with poor performers quickly and effectively, while protecting people against arbitrary or unfair action.
Industrial Relations Act
The Industrial Relations Act 1988 sets out the conditions under which a termination of employment is lawful. These standards apply to the APS.
The provisions which are relevant to terminations resulting from poor performance require that an employer must:
- have a valid reason relating to the employee's capacity for terminating their employment;
- give the employee the chance to respond to allegations about work performance;
- give the required notice, or compensation instead of notice.
Cases in the Industrial Relations jurisdiction have confirmed that an employer should not take action against a person without first giving them a reasonable opportunity to attain the required standards of performance.
The Public Service Act
The Public Service Act 1922 defines inefficiency in the following way:
An officer is inefficient if and only if the officer fails, in the performance of the duties that he or she is required to perform, to attain or sustain a standard of efficiency that a person may reasonably be expected to attain or sustain in the performance of those duties.
APS 1995-96 Enterprise Agreement: The Procedures
Continuous Improvement in the Australian Public Service: Enterprise Agreement 1995-96, sets out the procedures for dealing with continuing poor performance.
Where you believe that a person is inefficient the following steps need to be taken:
- Step 1: Issue a formal written warning to the person, after normal counselling* has
taken place. At any stage after receiving the warning the person may agree to leave the
Service ('retire with consent'). This action is not the same as Voluntary Retrenchment.
*Normal counselling is explained in the Frequently Asked Questions Section - Step 2: An Assessing Officer from another work area assesses the person's work performance for a period of 3 months. The Assessing Officer and the person may agree to shorten the period of assessment.
- Step 3: At the end of the assessment period, if the person's work performance is assessed as meeting the required standard, no further inefficiency action is taken. If the person is assessed as inefficient, the Secretary issues a notice of intention to retire and the person has seven days to show cause why the retirement should not proceed.
- Step 4: The Secretary issues a notice of retirement, or may take some other action, including reducing the person's classification or transferring the person.
The complete Inefficiency Procedures are issued as Public Service Commissioner's instructions. If you are intending to use the Procedures you should refer to those instructions and consult your agency's human resource specialist.
Appeal Or Review Provisions
Termination of Employment - Any person who believes that the termination of their employment is unlawful, may lodge an application for review of the decision with the Australian Industrial Relations Commission (AIRC). The retirement takes effect on the date specified in the notice, irrespective of any application for review. If the appeal is successful, the AIRC or the Industrial Relations Court of Australia may award compensation or, in some cases, the person may be reinstated.
Reduction of Classification - Any person who feels that the reduction in their classification is unreasonable because they believe that they have met the required performance standards or that there was a serious defect in the inefficiency process may, within 14 days, appeal to a Redeployment and Retirement Appeal Committee (RRAC) of the Merit Protection and Review Agency. The person remains on duty until the appeal is resolved. The RRAC may confirm or revoke the notice of reduction.
Decisions, whether resulting in termination or reduction, are also subject to review under the Administrative Decisions (Judicial Review) Act 1977.
Checklist
It may be useful to use a checklist of good practice for successfully handling cases of continuing poor performance. We have found the following list to be helpful:
clear job specification/instructions - ensure that the person has a copy of the current job documentation, and that they understand the standards of work performance that are expected of them.
adequate training - ensure that the person has received appropriate training and assistance to perform the duties.
counselling - the person must be given an opportunity to respond to allegations of continuing poor performance. Ensure that you have shown the person where their performance is below the standard expected and that goals for improvement have been set and monitored for an agreed period of time.
written records of counselling - ensure that you keep clear, accurate and relevant, written records of discussions with the person about work performance problems. These records should be signed by the person and they must be given the opportunity to provide comment.
other possible factors - ensure that you have looked into other possible causes of poor performance, such as medical problems and personal difficulties and provided the person with appropriate opportunities to deal with these problems.
formal warning - ensure that the work standards and performance problems detailed in the formal warning are consistent with those you raised with the person during counselling. (Documentation should be developed with advice from your local Human Resource specialist.)
Frequently Asked Questions
The answers provided here are based on the relevant legislation, actual case experience and statements by the Courts or the Redeployment and Retirement Committees of the MPRA.
Do the inefficiency procedures apply to everyone?
No. The procedures apply to all officers and continuing employees employed under the Public Service Act 1922 except Secretaries, unattached Secretaries, Senior Executive Service officers and probationers.
Can the inefficiency procedures be used with a probationer?
No, the inefficiency procedures do not apply to a probationer. If the probationer's performance is unsatisfactory, the probation may be terminated in accordance with the probation procedures. It is important that poor performance is addressed quickly during probation.
Can a person with a disability be retired on inefficiency grounds?
The agency should obtain advice from appropriate professionals about the special requirements of the person, and ensure that they are trained in the use of equipment.
Like other staff, people with a disabilities should still be required to attain and sustain satisfactory work standards. Different arrangements apply to staff employed under a Supported Wage Program.
When are the inefficiency procedures not appropriate?
Where a manager realises there is inefficiency, discussions and counselling sessions with the person may reveal that there are specific causes for the poor performance. In some cases, such as the following, it would be inappropriate to use the inefficiency procedures.
Where a person cannot be effectively employed because of technological or other changes in the work methods of the agency, the person should be treated as excess, not as inefficient.
In some cases, apparent inefficiency results directly or principally from a medical condition. The matter should initially be dealt with in accordance with the Fitness for Continued Duty instructions. However, the existence of a medical condition does not of itself prevent appropriate action in accordance with the inefficiency procedures.
Where the inefficiency involves a breach of legislation or directions or other misconduct, disciplinary action should be considered.
How does inefficiency relate to misconduct?
If a person's inefficiency is for reasons or causes within their control, their inefficiency cannot be dealt with under the Inefficiency procedures. It can only be dealt with under the misconduct procedures. Whether or not something is within a person's control must be determined according to each case, having regard to the person's physical and mental capacities. For example, a person's persistent failure to comply with instructions could be because they are simply incapable of following instructions or because they choose not to follow them.
If the person is incapable of following instructions, providing there is no medical cause (see below), they should be dealt with under the inefficiency procedures; if they are unwilling to follow instructions, they should be dealt with under the misconduct procedures.
Can the inefficiency procedures be used when there are medical problems?
The existence of a medical condition does not preclude the use of the inefficiency procedures where the effect of the condition on work performance is minimal.
Once a person raises the issue of a medical problem, it must be investigated before the inefficiency process is commenced. If it is found that the poor performance is due to a medical problem, the person should be dealt with under more appropriate procedures (e.g. fitness for continued duty). If the medical problem is investigated and found to be of little or no effect on performance, the inefficiency process may continue. In most cases, there is no need to re-start the process after the medical issue has been dealt with.
What counselling is required before issuing the warning?
The manager needs to have discussed in detail the work standards required, and to have provided appropriate training and assistance to enable the person to do the job. The person has to be shown where their work is below standard and goals for improvement should be set over an agreed period of monitoring. The manager needs to keep records of counselling sessions, countersigned by the person if possible. It is important that the manager give the person an opportunity to explain any reasons for the under-performance and that, where appropriate, these are addressed, e.g. by additional training, leave, external professional counselling.
During the assessment period, what is a support person and what is their role during the assessment?
During discussions with the Assessing Officer, the person whose performance is being assessed may choose to have a support person present, for example a union representative or a friend. This person is present as support only, and should not play an active role in the discussion. Meetings should normally be arranged at a mutually convenient time, but in any event an effort should be made to reasonably accommodate the person's wish to have a support person present.
What constitutes a 'serious defect' in the process?
The following are examples of a flawed process. Any one or more of them in combination could constitute a serious defect in the process.
- if instead of providing details of the required work standards, the manager simply gave the person a copy of the duty statement;
- if the warning does not provide details of expected work standards and outline how the person's performance does not meet the required standard;
- if there is delay in completing a case (e.g. if the assessment report is not acted on until months after it is finalised);
- if an allegation of poor performance was based on refusal to obey directions, when this should have been dealt with under the disciplinary provisions;
- if the person was denied natural justice in not being given important documents containing adverse material in time to respond to the Notice of Retirement.
References
Public Service Act
Division 8C (to the extent that it has not been replaced by the APS 1995-96 Enterprise Agreement)
- s.76S-definition of inefficiency
- s.76X-Public Service Commission may issue administrative instructions and directions
- s.76W-power to retire on the grounds of inefficiency
- s.76W-power to reduce the person's classification on the grounds of inefficiency
- s.76W-refers to the power to transfer a person under s50 on the grounds of inefficiency
Industrial Relations Act
- s.170DB-notice of termination period
- ss.170DB(4) and (5)-payment instead of notice
- s.170DC-employee to have opportunity to respond
- s.170DE-termination must be for valid reasons
- s.170DF-employer not to terminate on certain grounds
- s.170EA-employee may lodge an application for remedy in respect of unlawful termination
