Performance and Misconduct Policy

This policy may be used as guidance for the process or manner in which Lawpoint may performance manage and/or discipline an employee because of their poor performance or misconduct in the course of their employment.

This policy applies to all employees and contractors (including labour hire), whether full time, part time or casual, which shall collectively be referred to as employee(s) in this policy.

1. Performance and Conduct Expectations

1.1

Lawpoint expects all employees to perform to a high standard and in keeping with Lawpoint’s professional and ethical obligations.

1.2

Lawpoint seeks to assist employees to perform to a high standard by providing performance objectives, regular feedback, support and guidance to employees.

1.3

Lawpoint’s expectations in respect of an employee’s conduct are specified in:

an employee’s contract of employment;
Lawpoint’s Code of Conduct;
Lawpoint’s policy and procedure documents.

1.4

In addition, legal practitioner employees are expected at all times to abide by all professional obligations imposed by the Legal Profession Uniform Law (NSW), Legal Profession Uniform Regulations, Legal Profession Uniform General Rules and the Solicitors Conduct Rules.

2. Grounds for Disciplinary Action

2.1

Disciplinary action may be taken in response to any:

unsatisfactory professional conduct or professional misconduct;
unsatisfactory performance;
misconduct; and
serious misconduct.

2.2

Misconduct includes (without limitation) conduct which is not serious misconduct but which is wilful conduct, which is unsatisfactory, which may include a breach of the Code of Conduct, a failure to follow reasonable directions or a breach of an employee’s employment contract or a policy.

2.3

Serious Misconduct includes (without limitation) a recurrent conduct which has previously been found to be misconduct, or serious misbehaviour which may be a single occurrence of a kind which constitutes a serious impediment to the carrying out of the employee’s duties, or to other employees carrying out their duties; a serious risk to the safety of employees or other persons; a serious risk to Lawpoint’s property, a serious dereliction of duties, a conviction by a court of an offence which constitutes a serious impediment to the carrying out of duties, an act of dishonesty, an act of violence, fraud or a finding of professional misconduct or unsatisfactory professional misconduct by a professional body.

2.4

Unsatisfactory Performance includes (without limitation) a repeated and serious failure of an employee to perform the duties of the position employed in having regard to the nature and purpose of the position, its classification, the stated performance criteria of the role and any representations made by the employee at the time of selection for employment in that position (as to experience, qualifications or capacity to perform the role), without the presence of sufficient mitigating factors.

3. Unsatisfactory Performance

3.1

Where an employee is identified as having unsatisfactory performance, Lawpoint will endeavour to assist the employee to improve performance with feedback and guidance.

3.2

If Lawpoint has concerns about the performance of an employee, the Practice Manager or Principal will meet with that employee to discuss the concerns and establish a reasonable period of review. This, where necessary, includes:

the specific deficiencies in the employee’s performance;
appropriate development assistance required to address the issue/s;
the specific corrective action required by Lawpoint;
the performance standards required by Lawpoint; and
a reasonable timeframe in which to address the issue/s.

3.3

If the employee addresses the performance concerns to the reasonable satisfaction of Lawpoint within the identified timeframe, the action will cease.

3.4

Following the completion of a reasonable review period as outlined above, if there is insufficient improvement in the performance of the employee, Lawpoint will work with the employee to establish a formal improvement plan and timeline to assist the employee to achieve the performance standards. The plan will specify the required performance and standards and the timeframe over which the employee’s performance will be closely monitored (consistent with the above).

3.5

A breach by the employee of the improvement plan or a failure to meet the milestones required by the improvement plan within the specified timeframe, may result in disciplinary action.

4. Disciplinary Procedure

4.1

The procedures outlined below are intended as a guide only to the disciplinary procedures which may be implemented by Lawpoint. Each matter will be determined on its merits having regard to the specific facts of the matter.

4.2

Lawpoint:

may provide warnings to employees about any unsatisfactory performance issues or unacceptable conduct either verbally or in writing;
will, where appropriate, provide employees with an opportunity to rectify the issues and improve their performance or conduct with the assistance of Lawpoint;
Disciplinary action including termination is available if the employee’s performance or conduct does not improve or where the poor performance continues to occur;
Termination of employment may occur without notice in instances of serious misconduct;
In every case, Lawpoint will determine the actual disciplinary procedure to be adopted in its discretion and in consideration of the circumstances of the case as a whole. Nothing in this policy prevents Lawpoint from issuing a final warning at any stage of the process; and
Nothing in this policy prevents Lawpoint from dismissing an employee at any stage of the procedure set out in this policy if Lawpoint deems this action is warranted, for example in circumstances involving an employee committing serious misconduct.

5. Disciplinary Meeting

5.1

The employee may be asked to attend a formal disciplinary meeting to address the area(s) of concern. An example of a procedure that may be adopted by Lawpoint in these circumstances may involve:

the employee being given notice of the meeting;
the employee being given a reasonable opportunity to have a support person present at the meeting;
putting the issue(s) of concern or allegations to the employee;
giving the employee a reasonable opportunity to respond to the concerns or allegations;
Lawpoint considering the employee’s response;
Lawpoint determining whether the concern(s) or allegations have been substantiated ; and
if it is determined that all or some of the concerns or allegations are substantiated, Lawpoint determining what, if any, disciplinary action is appropriate in the circumstances.

6. Disciplinary Meeting

6.1

Any disciplinary action taken by Lawpoint against an employee will vary from case to case. This may include a consideration of whether the employee has received any prior verbal or written warnings in relation to their performance or conduct, has failed to meet the expectations set in an improvement plan or has engaged in conduct which would justify summary dismissal. Examples of disciplinary action which may be taken include, but are not limited to, the following:

training;
informal counselling;
disciplinary meeting;
verbal warnings;
written warnings; and
dismissal, including summary dismissal.

6.2

Nothing in this policy requires Lawpoint to adopt any one or more of the examples of disciplinary action referred to in the policy. Lawpoint may determine that the conduct of the employee is of such seriousness as to justify summary dismissal without notice and without the opportunity for the employee to improve his/her performance.

7. Suspension

7.1

Lawpoint may, at its sole discretion, conduct a formal investigation into any allegation of misconduct by an employee.

7.2

During the whole or part of the investigation, Lawpoint may at its sole discretion, suspend an employee and direct that an employee not attend Lawpoint’s workplace or undertake duties.

7.3

During the course of any such investigation instituted by Lawpoint, the employee shall comply with all reasonable directions issued by Lawpoint in relation to

the ongoing conduct of the investigation, including attending meetings with Lawpoint or an investigator appointed by Lawpoint; and
providing responses as required and appropriate to questions by or on behalf of Lawpoint.

8. Confidentiality

8.1

Disciplinary discussions and meetings (and their outcomes) are confidential. They are not to be discussed with co-workers.

8.2

A failure to maintain the confidentiality of performance management discussions or meetings is a breach of this policy and may result in disciplinary action.