Performance Management Issues

Performance management is a legitimate business process that allows employers to address work-related issues and help employees improve. However, it must be conducted fairly and in good faith under New Zealand employment law.

Your employer has the right to set reasonable performance standards and address genuine performance concerns. However, they must follow proper procedures, which typically include clearly communicating expectations, providing adequate training and resources, giving you opportunities to respond to concerns, and offering genuine support to help you improve.

The process should be collaborative rather than punitive. If your employer is using performance management as a way to build a case for dismissal without giving you a real chance to succeed, this could constitute a breach of good faith and lead to legal action.

Key elements of fair performance management include clear communication of expectations, regular feedback, adequate timeframes for improvement, provision of necessary resources and training, and consistent application across all employees.

A Performance Improvement Plan (PIP) is a formal document that outlines specific performance issues, sets clear expectations for improvement, and establishes timeframes and support measures. When implemented fairly, PIPs can be valuable tools for employee development.

A fair PIP should identify specific performance gaps, set measurable and achievable goals, provide adequate timeframes for improvement, outline what support will be provided, and establish clear consequences if improvements aren't made. The plan should be developed collaboratively with your input.

Warning signs of an unfair PIP include unrealistic timeframes, vague or constantly changing expectations, lack of adequate support or resources, goals that are impossible to achieve, or evidence that similar issues with other employees were handled differently.

If you're placed on a PIP, you have the right to seek clarification on expectations, request additional support or training, provide your perspective on the issues raised, and have the process conducted fairly and consistently. You should also document everything throughout the process.

Employers can set performance standards, but these must be reasonable, clearly communicated, and consistent with your role and employment agreement. Unfair expectations often arise when employers suddenly change requirements without proper consultation or support.

Common examples of unfair expectations include dramatically increasing targets without additional resources, changing job requirements without agreement, setting standards that are impossible to meet within the given timeframe, or applying different standards to different employees without justification.

Expectations may also be unfair if they require skills or qualifications you don't have and weren't hired for, if they conflict with health and safety requirements, or if they're inconsistent with industry standards or your employment agreement.

If you believe expectations are unfair, document the specific requirements, gather evidence of why they're unreasonable (such as industry benchmarks or previous performance standards), and consider raising your concerns formally with your employer. If the situation doesn't improve, you may have grounds for a personal grievance claim.

Constructive dismissal occurs when an employer's conduct makes working conditions so intolerable that an employee has no reasonable choice but to resign. Unfair performance management is one of the most common causes of constructive dismissal claims in New Zealand.

Performance management may lead to constructive dismissal if the process is clearly designed to force you out rather than help you improve, if expectations are set so high they're impossible to meet, if you're denied necessary resources or support, or if the process is conducted in a humiliating or bullying manner.

Other indicators include constantly moving goalposts, applying different standards to you than other employees, or combining performance management with other adverse actions like reducing your responsibilities or isolating you from colleagues.

If you're considering resignation due to unfair performance management, it's crucial to get legal advice first. Constructive dismissal claims require strong evidence that your employer's conduct left you with no reasonable alternative, and the legal tests are complex.

Proper documentation is essential when dealing with performance management issues, whether you're trying to improve your performance or building a case for legal action. Start documenting from the moment concerns are first raised.

Keep detailed records of all meetings, including dates, attendees, what was discussed, and any agreements made. Save all emails, letters, and formal documents related to performance management. Document any training or support provided, as well as any requests for additional support that were denied.

Record your actual work output and achievements, including any positive feedback or recognition you receive. Note any changes to your role, resources, or working conditions that might affect your performance. If other employees are treated differently for similar issues, document this as well.

Also keep records of any impact on your health or wellbeing, including medical certificates if stress or anxiety affects your work. This evidence can be crucial for both defending against unfair performance management and supporting potential legal claims.

How you respond to performance concerns can significantly impact the outcome of the process. It's important to engage constructively while protecting your rights and documenting everything for potential future legal action.

When performance concerns are raised, ask for specific examples and clear expectations for improvement. Request written confirmation of what's discussed in meetings and what support will be provided. If you disagree with the concerns, provide your perspective in writing and ask for the matter to be investigated fairly.

Be proactive in seeking support, training, or resources you need to improve. If your employer refuses reasonable requests for support, document this as it could indicate the process isn't genuine. Consider whether external factors (like inadequate training, unclear instructions, or workplace stress) are contributing to performance issues.

Throughout the process, maintain professionalism even if you believe the treatment is unfair. Avoid admitting to performance issues you don't believe are valid, but focus on constructive solutions where genuine issues exist. If the process becomes unfair or bullying, consider raising a formal complaint or seeking legal advice.

Employers have an obligation to provide reasonable support to help employees meet performance expectations. This includes adequate training, clear instructions, necessary resources, and a supportive work environment.

Support might include additional training or mentoring, clearer job descriptions or procedures, access to necessary tools or technology, reasonable adjustments for health issues, or changes to workload or deadlines where appropriate.

If you're not receiving adequate support, make specific requests in writing. Explain what you need and how it will help you meet expectations. If requests are denied, ask for written reasons. This documentation can be important if you later need to show the performance management process was unfair.

Remember that support should be genuine and designed to help you succeed, not token gestures designed to tick boxes before dismissal. If you suspect the latter, consider whether the overall process amounts to constructive dismissal or workplace bullying.

If performance management is conducted unfairly, you may have several legal options depending on your specific circumstances. These can include personal grievance claims for unjustified disadvantage, constructive dismissal claims if you're forced to resign, or complaints about breaches of good faith.

Potential remedies include compensation for lost wages and hurt and humiliation, reinstatement to your position if you've resigned or been dismissed, orders requiring your employer to follow proper processes, or changes to workplace policies and procedures.

The strength of your case will depend on factors like whether proper procedures were followed, whether expectations were reasonable and clearly communicated, what support was provided, and whether you were treated consistently with other employees.

Time limits apply to employment claims, so it's important to seek legal advice promptly if you believe you've been treated unfairly. A lawyer can help assess your situation, advise on the strength of potential claims, and guide you through the mediation or Employment Relations Authority process.

Consider seeking legal advice early in the performance management process, especially if you believe the process is unfair or if you're feeling pressured to resign. Early legal advice can help you understand your rights, document issues properly, and potentially resolve problems before they escalate.

Definitely seek legal help if your employer refuses to follow proper procedures, sets unrealistic or constantly changing expectations, denies reasonable requests for support, treats you differently from other employees, or if the process is affecting your health and wellbeing.

You should also get legal advice if you're considering resigning due to the performance management process, if you've been dismissed following performance management, or if you believe the process is being used to mask discrimination or other unlawful conduct.

An employment lawyer can help you understand whether the performance management process is fair and lawful, advise on your options for responding, help you document issues properly, and represent you in any formal processes or legal proceedings that may follow.