All in a day's work: Be good for goodness sake

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He knows when you've been bad or good, so be good for goodness sake...

You better watch out, you better not cry, better not pout, I'm telling you why, Santa Claus is coming to town...

He's making a list, he's checking it twice, gonna find out who's naughty and nice, Santa Claus is coming to town...

For most of us, being naughty or nice isn't too much to worry about, even at this time of year. But not so, for all employees....

I caught up for coffee last weekend with two colleagues who have recently become mothers and who are on maternity leave. They were particularly outraged to have read about the Henderson nanny who was caught out by her employer, leaving her four month old charge home alone without any care and attention.

Imagine the father who rushed home, having realized he had gone to work without leaving behind any nappies, returning to find the professional nanny that the family had hired was nowhere to be seen. The father waited... and waited... for over 2 hours before the nanny returned.

The poor father must have been wondering how many times this had happened before; when he hadn't returned from work and caught her out.

Many clients often ask how do you differentiate between poor or non performance and serious misconduct?

Like most aspects of employment law, there is no 'one right answer' or 'line in the sand'. It is a judgment call that must be made depending on the facts and circumstances at the time.

Factors that should be taken into account include whether it is a matter that is ongoing, or is it just a one off? Also, how serious are the consequences?

Timing is also relevant in terms of how long any investigation process might take and employers are often wary of performance management because of the time it takes. Employees are allowed a period of time to improve their performance to the required level, as well as an entitlement to any necessary training or coaching and having knowledge of the expectations they are expected to meet.

When this is compared with allegations of serious misconduct (which requires an investigation and gives the opportunity for the employee to provide a response before any decision is made), allegations of serious misconduct can be dealt with quite promptly.

Timing milestones such as Christmas tend to focus people's minds about what needs to be done and by when.

Many employers like to deal with issues before Christmas, to wrap things up before the end of the calendar year. Unsurprisingly, while no-one likes the prospect of losing their jobs, it is even less palatable at Christmas time when you are otherwise expecting holiday celebrations.

So the moral of the story is perhaps to treat everyday like the jolly man in his red suit might be coming - or at the very least, like someone might be watching. Otherwise, you risk not just finding a lump of coal in your Santa sack, but perhaps worse consequences in respect of your employment, which will make for a bleak Christmas.

On a happier note, best wishes for the festive season. Hopefully, you can avoid any employment issues - either as an employer or an employee and have a jolly and relaxing time. See you in 2011!



Bridget Smith is an employment lawyer at Minter Ellison Rudd Watts.