Performance Management Processes, Terminations & Risks Workshop 

From remedial approaches to ending the employment relationship  


One of the most difficult, time consuming and intense roles of an HR Practitioner is navigating performance complexities. Even with the most sound and well intentioned performance improvement and disciplinary processes in place, at times you will also have to assist the business by ending an employment relationship.  
This workshop will look at processes for addressing performance, managing terminations, minimising HR risks, and how to substantively justify your decisions.    
We will also explore the fact that there are times when you can run the best process in the world and the employee still looks to raise a personal grievance. This workshop will look at the personal grievance process and mitigating associated risks.  
Be sure to attend this Performance management processes, terminations & risks workshop - an interactive course which will help you unravel the complexities of managing performance. 

Workshop Agenda 

8:30 :- Registration and welcome tea / coffee    
Course duration: 9.00am – 4.30pm
Effective performance management processes 
  • A reminder of the key steps during a performance management process 
  • Drafting a robust PIP 
  • Alternatives to performance management 
Consequences of misconduct, investigations and serious misconduct 
  • The difference between performance management and misconduct issues 
  • The investigation process - both internal and external investigations 
  • Justifying a termination for serious misconduct 
Restructurings and redundancies 
  • What is required in your business case to justify change 
  • How to face hurdles and delays in your process 
  • Lessons from restructurings and redundancies in the Covid 19 environment 
Medical Incapacity and Mental Health in the Workplace 
  • The steps to terminate for medical incapacity 
  • What obligations does an employer have when it comes to an employee's mental health 
  • How an employee's mental health may affect your employment process 

Workshop Facilitator 

Fiona McMillan, Partner, Lane Neave 
Fiona is the Auckland Employment Law Partner and commenced her career with Lane Neave in 2007. Fiona specialises in assisting employers with all employment law related advice including collective bargaining, independent external investigations and human rights commission matters. 
She regularly represents employers in Mediations, Employment Relations Authority Investigation Meetings and the Employment Court 
Fiona regularly presents seminars to clients, industry bodies and at conferences. 
Fiona was nominated for Young Lawyer of the Year at the 2016 Law Awards. 
In 2020, Fiona was named in the Doyle’s Guide New Zealand as a recommended Health and Safety Lawyer. Fiona has also been recognised in Legal 500 and Chambers & Partners as a leading employment and health and safety practitioner in New Zealand. 

AUCKLAND: 16 March 2021 | ONLINE: 16 March 2021 | WELLINGTON: 18 March 2021 
**The online agenda (16 March 2021) is in line with the Auckland conference program. 


Following the 2020 election, addressing changes to employment relations policies and government priorities. Understanding HR risks and obligations in the ‘new normal’ working environment. Topics could also include updates from Equal Pay amendment Bill, Protected Disclosures (Protection of Whistleblowers) Act and Privacy Act.


  • Addressing the effect COVID-19 has had on HR risks, employment agreements and employment entitlements 
  • Addressing changes in working arrangements, leave, pay and health and safety measures. 
  • Reviewing COVID-19 guidelines and ensuring compliance with the Health and Safety at Work Act. What if there is a beach of safety and non compliance in the workplace? 
  • Review updates to the Wage Subsidy Schemes, Leave Support Schemes   
  • Proactively improving accountability in your organisation to reduce accessorial liabilities   
  • Review recent case examples   
Pay Equity:   
  • Understanding developments resulting from the Equal Pay Amendment Bill   
  • Managing a pay equity claim effectively   
Contract Workers:   
  • Understand the updates to protections for contractors  
  • Are you correctly classifying contractors? Recognising a “dependent contractor” and the benefits and protections they are entitled to 


The Employment Relations (Triangular Employment) Amendment Act:   
  • Understanding the implications for employers who use third party labour, whether on a temporary or long-term basis
  • Understanding the processes and steps before a controlling third party can be joined in a personal grievance proceeding  
  • Managing grievance claims brought under the new legislation   
The Holidays Act:    
  • Updates to Holiday Act following the general election  
  • Common areas of non-compliance   
  • Discretionary payments and short term incentive schemes 
  • Managing and responding to Holidays Act non-compliance, for current and past employees   
Parental Leave:
  • Updates on parental and primary carer leave  
  • Understanding leave and pay entitlements  
Flexibility provisions:   
  • Options for responding to requests for flexible and remote working  
  • Legal framework   
  • Understanding flexibility provisions for persons affected by Family Violence Act  



Mental Health and Duty of Care  
  • Supporting mental health during COVID-19 transition, impact of working from home and/or returning to the office 
  • Safeguards, controls for stress or anxiety, fulfilling your duty of care 
  • Developing your safety system to support the recognition of psychosocial hazards, psychological risk, mental health warning signs, domestic violence risk and other workplace risks  
  • Meeting obligations under legislations: The Employment Relations act; The Human Rights Act; The Health and Safety at Work Act   
Psychological injury and medical incapacity  
  • Working with medical experts who are treating the employee - what can you request, and dealing with non-responsive employees and doctors   
  • Accommodating workers compensation claims, and dealing with issues around causation   
  • Dealing with absent employees, and avoiding discrimination claims when dealing with medical incapacity due to mental health issues  


  • Demonstrating to a court that a restructure or redundancy is genuine, fair and reasonable, to what extent the impact of COVID-19 has had on this decision  
  • Ensuring redundancy used in the correct context – not as a ‘quick fix’ to resolve other issues  
  • Ensuring a full and fair consultation process for a restructure or redundancy 
  • Reviewing technical redundancy clauses  
  • Disestablishment VS Termination  
  • Managing restructures and redundancies for employees on parental or negotiated carer leave   
  • Have you exhausted all other options, such as redeployment?   
  • What are the guidelines on offering alternative positions? What if the employee declines the offer of an alternative position?   
  • Review case laws where a redundancy has been challenged by an employee


  • Understanding legislation covering bullying and sexual harassment: The ERA; Human Rights Act; Protected Disclosures Act; Health and Safety at Work Act  
  • Being proactive, thereby reducing risk and vicarious liabilities; and instigating different ways for employees to report bullying, harassment or sexual harassment   
  • Managing a complaint formally or informally? Looking at factors to influence your approach, and assessing the seriousness of an allegation  
  • Understanding when WorkSafe, the Employment Relations Authority or other agencies may get involved 
  • Responding to requests for anonymity   
  • Balancing the interests of the complainant and other parties involved, and managing their expectations
  • Analysing recent case decisions and remedies 





  • Measuring performance, and designing sound performance improvement processes
  • When should you start and when should you halt a PIP? 
  • Addressing the impact of COVID-19 on performance management  
  • How to be more accommodating in performance management processes when you’ve been made aware of mental health related issues   
  • Managing terminations, risks of constructive dismissal claims or personal grievance claims  
Managing poor or difficult behaviour and misconduct   
  • Difficult behaviours, performance issues or serious misconduct; navigating the intersection and mitigate your legal risks and achieve your desired outcome  
  • When are you entitled to act on behavior outside of work? What sort of behavior is deemed to have a direct impact on your organisation?   
  • Having appropriate policies in place for the evolving digital era and addressing misconduct on social media  
  • Requirements of a discipline meeting: what you have to disclose, setting expectations, being transparent, communicating potential outcomes, and pitfalls to avoid  
  • Reviewing recent case decisions 


  • Review of updates to the Privacy Act and the information privacy principles (IPPs)  
  • Collection, use and disclosure of personal data: ensuring relevance of personal information collected; and ensuring reasonable safeguards for personal information   
  • Can an employer lawfully request biometric data? Can an employee refuse?   
  • Ensuring safety of data internationally 
  • Reporting of notifiable privacy and data breaches, understanding the implications of non compliance  
  • When to inform the Privacy Commissioner?   
  • Monitoring technologies – when are you crossing the line?   
  • GPS tracking of vehicles which are used for work and private purposes – looking at potential privacy issues and safeguards   
  • AI for recruitment – removing potential for bias: through managing criteria entered; and looking at use of AI for video interviews, when it may reveal an applicant’s emotional state  


  • Navigating the grey areas of impairment versus usage    
    • - What are the thresholds to consider for testing?    
    • - Under what circumstances could your policy be challenged?   
  • Do you need to update your policies?  
  • Legislation implications: in system vs impairment   
Alcohol, and drugs in general:   
  • Drawing the line between what an employee does in their own time, and how that impacts their ability to be safe and productive at work  
  • Handling a situation where an employee refuses a test, and obtaining independent medical examinations 
  • What are the different types of testing and when and how should you use it?
  • Addressing privacy issues and minimising intrusion  
  • Drugs, alcohol and your policies:    
    • - Is there a place for zero tolerance policies?   
    • - Should you be treating prescription or other medications, marijuana and alcohol usage different?
  • Can an employee refuse a test, and can this be grounds for disciplinary action? What if an employee fails a drug test? 
  • Case law reviews