Poor Performance or Misconduct? How to Tell the Difference

Table of Contents

Share at:

Poor performance and misconduct can be difficult to manage in the workplace and even more so when it comes to letting your employee go. Despite both being grounds to terminate an employee, in practice they look very different. In this article, we’ll discuss the difference between poor performance and misconduct, including how employers should go about taking action.

Poor performance

When you hire an employee, you probably have a pretty clear idea of the work you expect to see from them. This can be discerned through setting Key Performance Indicators (KPIs) or reviewing the quality and timeliness of the projects you assign. Poor performance, put simply, is when these expectations aren’t being met. Employment contracts usually have clause outlining the duties involved in a certain job. When your employee isn’t fulfilling these requirements, it can be a cause for concern. However, if want to terminate your employee for poor performance, you have to make sure you go about it the right way.

Termination for poor performance

Terminating an employee for poor performance without following the right process may give rise to an unfair dismissal claim. To protect yourself, it’s important to have a performance management policy in place. Your policy should outline the process for how you deal with poor performance. This can include things such as:

  • Clearly outlining the expectations of employees
  • Conducting regular reviews with your employees to monitor performance
  • Having a conversation where an employee isn’t performing to standard
  • Issuing a warning letter before terminating your employee
  • Issuing a letter upon terminating an employee for poor performance

When you terminate an employee for poor performance, you also need to give them notice and pay out any leave owing to them. If you are terminating an employee who works on a casual basis or is still on probation, then termination can have immediate effect.

Customise and download our termination letter for free.

Create and download our termination letter (poor performance).

Get started

Misconduct

Misconduct is of a far more serious nature than poor performance. This occurs where an employee engages in behaviour which results or could have resulted in serious harm to the business or other employees. Some common examples of misconduct include:

  • Assault
  • Fraud
  • Stealing
  • Intoxication on the job

Termination for misconduct

When terminating an employee for misconduct, you do not have to give notice. Despite this, you should always provide reasons for the termination and have it set out in writing. You will also still have to pay any leave entitlements owing to the employee such as annual or long service leave.

Conclusion

The key difference between poor performance and misconduct is the employee’s own role within it. There are many reasons why your employee may not be performing up to scratch, such as personal issues, lack of training or lack of skill. However, misconduct denotes that the employee has acted in a reckless or risky way which jeopardises your business or other employees. Yet whichever situation it is, it’s important to take the necessary precautions and ensure that termination isn’t harsh, unjust or unreasonable. If you have further questions in relation to termination, it may be worth getting in touch with an employment lawyer.

Don’t know where to start? Contact us on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest lawyer marketplace.

Share at:

Simplify creating legal documents today

Browse through Lawpath's AI tools which can be used to draft, review and refine legal documents today!

Related Articles

Which Parties Need to Sign a Trust Deed?

Thinking about establishing a trust? Find out in this article which parties need to sign and witness the Trust Deed.

Requesting Medical Certificates From Sick Employees: Legal?

Requesting a medical certificate from a sick employee can be a challenging area to navigate. So when is this legal? Read our guide to find out.

What is the Difference Between a Public and Private Company?

Which business structure is right for you: public vs private company? In Australia, this depends on several factors. Read our guide to learn more.

OHS vs WHS: What’s The Difference?

Is there a difference between OHS vs WHS? Read this article to find out the difference and what these terms mean.

What Should an Employee Handbook Include?

An employee handbook is a useful resource that ensures all employees are aware of rules and expectations. To learn more about what it should contain, read on.

What Is Trademark Licensing?

Find out about the types of trademark licensing and the benefits.