Non-Culpable Conduct:
Dealing with the Poor Performer

The issues of culpable and non-culpable conduct were discussed at the beginning of this document. This section focuses on the particularly troublesome issue of non-culpable poor work performance.

Poor work performance issues often come to a head when an incident risks patient safety. Such an incident obviously generates the need for a careful investigation. If, during the course of the investigation, you decide that the matter is non-culpable (that is, non-blameworthy) then you must ensure that you do not treat the matter as a disciplinary issue.

The principal difference lies in the approach to correction. In the disciplinary context, penalties are used to get the employee's attention and to rehabilitate the employee. In the non-culpable setting, the key objectives are to ensure that the employee knows what is expected, receives appropriate instructions, and is aware of the consequences of failure, even if she or he can ultimately do nothing to prevent failure.

If you are considering termination of an employee for non-culpable work performance problems, then you must be satisfied about each of the following:

• The University has identified to the employee the level of job performance that it requires.
• The University has communicated these standards to the employee.
• The University has given suitable instruction and supervision to enable the employee to meet the standards.
• The University will be able to establish on the evidence before an arbitrator that the employee did not meet the standards
• The University can prove before an arbitrator that it warned the employee in clear and unequivocal terms about the consequences of the employee's failure to meet the standards.
• The University decision does not violate Human Rights principles which apply in the particular circumstance in question. (This last is another subject. Get advice in cases where the work performance issue is connected with mental or physical incapacity, or with other issues arising under Human Rights legislation).