Managing conflict, poor performance and misconduct

Conflict and misconduct

It's better to prevent conflict and misconduct than to have to deal with them later. Encourage an open-door policy on-farm where staff feel comfortable letting you know about issues as they arise. You could implement regular check-ins to monitor the feeling in your workplace.

We recommend developing a code of conduct for your farm. This sets out expected behaviour to establish a positive workplace culture. It’s also a useful tool for dealing with misconduct as it provides clarity on what’s considered unacceptable behaviour.

It is often helpful for you both if your employee has independent support on issues. They can contact the Rural Support Trust for information on employment situations.

Dealing with conflict and disputes

Conflict and disputes can emerge from misunderstandings, differing opinions, bullying, or cultural differences, among other reasons. Ignoring conflict and hoping it will go away can be very harmful as it creates tension, stress, and ill-feeling. Unaddressed conflict will fester until it reaches a crisis point which may result in the loss of a key employee or negative behaviours. When conflict develops, it needs to be treated seriously.

Resolving issues requires you to listen, talk to all involved, and be objective. Successful resolution may need compromise, mediation, or even disciplinary action.

If you’re the source of the conflict, it might be better to involve a professional mediator (a neutral third party) who can remain impartial and consider all perspectives.

If you are acting as a mediator between employees, you must help them;

• Stick to the issue concerned and avoid getting side-tracked by other non-relevant issues.
• Deal with one thing at a time and do not get caught up in feelings, emotions or personal issues.
• Be positive and have the desire to resolve the issue.
• Stick to the present and not introduce irrelevant historical issues.
• Be honest.
• Acknowledge errors if that is what has happened.

Successful conflict resolution involves negotiating a way forward and compromise on both sides, so you may not reach a completely acceptable solution the first time. Having an agreed plan in place which is regularly updated can be a good place to start.

Dealing with misconduct

Misconduct can occur at two different levels, misconduct and serious misconduct. Misconduct is a minor offence such as inappropriate language, failing to follow an employer’s reasonable and lawful instruction, lateness, or minor breach of an employment agreement.

Serious misconduct involves offences that are very serious and may even involve breaking the law. It covers situations where an employee’s behaviour is such that others feel threatened or unsafe, or the act results in a deeply impaired trust in the person. Common examples include theft, assault, bullying, harassment, serious breaches of health and safety, use of drugs or alcohol at work and wilfully damaging property.

Investigating conflict and misconduct

The first step is to determine what happened by reviewing physical evidence, and speaking to witnesses and the employee’s supervisor. You may also need to speak with the employee. Warn them the incident may constitute misconduct and what they say could be relevant in a disciplinary process later.

You can then choose whether to initiate a formal disciplinary process or resolve the situation through other means (e.g. training).

You are required to always act in good faith. This includes transparent communication and conducting a full and fair investigation. If you opt for disciplinary action (like a warning or in serious cases, dismissal), it must be justified. This means there was a genuine work-related reason, you genuinely and reasonably believed action was necessary, and you followed a fair process in reaching and implementing the decision.

Maintaining records as evidence

Keeping records is important for all conflicts, misconduct and disputes. It becomes even more important if disciplinary action needs to be taken either immediately or after reoccurring offences. Take thorough notes during meetings so there is a record of conversations. It’s a good idea to include a support person to take notes on your behalf, that way you can concentrate on the matter at hand. Your employee is also entitled to bring a support person.

Ensure you record the information below and give copies to all parties involved:

1. The date it was raised.
2. The key points on both sides.
3. The action taken.

Disciplinary process

To ensure a fair and reasonable outcome is reached, we recommend getting an advisor or lawyer to help you navigate this process and advise you on the best way to handle different situations.

A disciplinary process may result in action being taken against the employee such as a warning, removal of privileges or, in serious cases, dismissal. It ensures a fair and reasonable process is followed to try and correct misconduct or poor performance in an employee.

During a disciplinary process, it is very important to follow a robust process to avoid the risk of an employee taking a personal grievance claim against you. You must;

• Act in good faith.
• Have a good reason.
• Follow a fair and reasonable process.
• Have an open mind when dealing with problems so outcomes aren’t pre-determined.

There are several steps to a disciplinary process. We recommend following the process laid out on the Employment New Zealand website.

Warnings

The most common form of disciplinary action is a warning. A warning is given to let the employee know that their conduct or performance is not satisfactory. It is important that a warning clearly indicates that repeating the behaviour or failing to improve could lead to termination of employment.

For more information on using warnings as a disciplinary option see Employment New Zealand.

Dismissal

The ability to dismiss an employee will depend on the circumstances of the case. Is the employee unable to work at all? Or can they work but no longer fulfil certain requirements of the job? How essential are these requirements?

Medical dismissal

When an employee is no longer able to do their job due to illness or injury, it can be a challenging time for both them and their employer. The nature of the illness or injury, its duration and prognosis for the future, are all important considerations in medical dismissal cases.

If an employee can work but cannot fulfil certain tasks (e.g. lifting or bending), it’s less likely that dismissal is justifiable. Of course, it depends on the situation - how crucial these tasks are to the job, what alternatives are available (like redistributing work or using machinery/equipment for assistance), how long the employee is unable to perform these duties, and any other relevant factors.

For more information on dismissal for medical incapacity visit the Employment New Zealand website.

Other, e.g. loss of licence

Sometimes an employee is unable to fulfil the requirements of the job for other reasons. For example, an employee who has lost their driver’s licence and driving on open roads is a key requirement of the job. An employer and employee should work through such problems in good faith. An employer should never rush into any decision to dismiss an employee and should consider the reasonable alternatives available. In this example, the employee may be able to apply for a limited licence. Always seek advice from your lawyer or employer’s association before acting.

Trial periods

Different rules apply during a trial period. An employer and employee may agree to a 90-day trial period as part of the employment agreement. If the trial period isn’t going well and the employer decides to dismiss the employee they must give the amount of notice as stated in the employment agreement.

Personal grievance

 A personal grievance is a type of complaint that an employee may bring against a current or former employer. A personal grievance can be pursued for various reasons. Some of the primary reasons include:

• Unjustifiable dismissal (unless the dismissal took place while the employee was on a valid 90-day trial period).
• Unjustifiable action which disadvantages the employee.
• Discrimination.
• Sexual harassment (by someone in authority or by co-workers).
• Racial harassment.
• Duress over membership of a union or other employee organisation.

The personal grievance must be raised within 90 days of the grievance occurring or coming to the employee’s attention. In a limited number of situations, a grievance can be raised outside this time frame.

For more information on personal grievances and how to deal with them, visit Employment New Zealand.