How to manage underperformance while minimising the risk of unfair dismissal claims
Managing underperformance and employee relations issues in any environment can be difficult, however industrial, manufacturing and other complex working environments can bring with it a number of additional considerations. These may include but are not limited to the physical nature of the job, shift requirements and site Work, Health & Safety (WHS) considerations.
With so much to consider, supervisors and managers don’t always give other employee relations issues as much time. However, it is essential that issues surrounding workplace behaviour and underperformance are handled appropriately, so as to best minimise the risk of attracting an unfair dismissal claim.
Acting with procedural fairness
The key for any manager or supervisor when addressing employee relations issues is to recognise that procedural fairness must be applied to any workplace issue. This should be universal and not dependent on what industry or field the business operates in. There will be certain procedures that, although tailored to your specific organisation, are quite common among all businesses. For this reason, it is very important to firstly understand what procedural fairness is, and secondly how to ensure it is applied when the situation requires it.
What is procedural fairness?
In a broad sense, procedural fairness – also known as ‘natural justice’ – is ensuring that workers are given the opportunity to be heard and have their views and right of reply considered. This means that should issues arise due to poor performance, interpersonal conflict, inappropriate behaviour (including harassment and bullying allegations), or WHS concerns, it is crucial that you are aware of what process must be applied in the given situation. And perhaps just as importantly, how to ensure that process is applied fairly.
In October 2018, a matter was heard at the Fair Work Commission that involved a dump truck operator working on the Sydney Westconnex project, who was dismissed on the grounds of serious misconduct. This matter involved the employer finding the former employee had deliberately nearly run over a co-worker with a truck while the worker was attempting to cross a pedestrian crossing. The day prior to this incident, the former employee was involved in a heated argument with the same co-worker over the returning of a borrowed power tool.
It was found that despite the business having a reasonable belief that what the co-worker said was what had occurred, it was determined on the balance of probabilities that such a serious allegation could not be upheld and therefore that the dismissal was unfair. In this case, the employer’s haste and inability to consider all the facts and responses meant that the former dump truck operator was awarded $54,000 in compensation.
No matter what the circumstance, an employer still has a duty of care towards an employee, so they should not be made to feel as though they have been unfairly or improperly treated during any stage of their employment – no matter what policy or performance issues they may be in breach of.
Once specific allegations are put to the worker, give them an opportunity to respond fully and make a recording of the employee’s response. For matters relating to poor performance, the employee must be given a reasonable timeframe where they have the opportunity to ‘turn things around’.
An Employee must, as an absolute minimum, not be denied a support person should they request one. While a business is not legally obliged to offer one, you may feel that in order to ensure total procedural fairness is provided that you are best to make the offer to the employee.
Be mindful that even in situations relating to discipline and performance management that the organisation holds a duty of care towards its employees.
Clearly communicate professional expectations and guidelines
No matter the working environment, as a supervisor or manager it is crucial to remember that providing procedural fairness will mean clearly communicating information regarding workplace behaviour and professional expectations in fair timeframes to workers.
Processes that stand up to scrutiny and do not spring any surprises (e.g. unannounced disciplinary meetings, pre-determined warnings or disciplinary outcomes) foster an environment of trust and help ensure all employees know what is expected of them.
In some blue-collar settings such as trade sites and remote mining areas, it may not always be possible to have face-to-face discussions with employees, so extra care must be taken in how expectations, guidelines and procedures are communicated. This is where policy and training can play a significant role in helping educate employees about the behavioural and performance guidelines they will be expected to adhere to. Provided with regular policy training and updates, most employees will naturally be in a position where they have a greater understanding of specific workplace requirements, and it can also help the business reduce its risk against any potential claims at a later date.
In mid-2016, a financial controller for a Perth BMW Dealership was found to have been unfairly dismissed when his employer terminated him on the grounds of accessing pornographic websites while at work after having been given warning regarding the same issue some four months prior. The business considered this second breach of policy enough to warrant a summary dismissal on the grounds of serious misconduct, however the former financial controller argued that not only did he not do what he was accused of (i.e. there was no valid reason for termination), but that the business decision-maker did not notify him of the reason he was being dismissed (hence denying him an opportunity to respond), and had made the decision to dismiss him prior to even undertaking the final termination discussion. This lack of procedural fairness is a classic example of some common mistakes that are made with employee relations issues.
It also pays to correctly record any employee training, either by taking minutes or having a written schedule or outline of the subject matter and the date that it was covered with staff. Even processes such as holding regular ‘toolbox talks’ can be very beneficial if messages are conveyed correctly and recorded at the time. This provides evidence that your managerial responsibility to correctly train and educate staff on the expectations of the workplace were indeed fulfilled.
Ensure that the business has clearly defined policies that employees are made aware of and have easy access to.
Once you have made your employees aware of the policy, you must train them regularly on this policy content and notify them of any updates or amendments to the policy. Simply telling your workers that you have a policy in place or where they can find it is not enough.
Keep appropriate records. Having a record of discussions or meetings is one of the better methods of reducing risks of unfair dismissal claims. Whether it is a follow-up email, or something as simple as diary notes, these demonstrate that show procedural fairness was taken.
How to handle performance management
Often the most difficult situations for any manager or supervisor to confront are those relating to performance management of their employees. The reality of holding discussions with an employee relating to their performance is that you will sometimes be discussing difficult or negative issues.
In these instances, as an employer it is a good idea to never enter into a performance or disciplinary discussion with an employee with a pre-determined outcome. This means that pre-drafted letters and scripts, such as those which brought an employer undone in a 2010 unfair dismissal matter, should be avoided. This is because it gives the impression that no matter how the employee responds in their right of reply, what they say will be disregarded. Instead, it needs to be made apparent that the employer is willing to fairly listen to the employee and give them the chance to responsibly explain their performance.
Another key factor relating to managing employee performance is that the employee must be notified of the areas of concern and given the opportunity respond to the performance concern over a reasonable period of time. If a warning is delivered, it must be clear and unequivocal that it is in fact a warning and that the employee’s tenure is at risk should they not improve their performance.
Once again this is where the idea of there being ‘no surprises’ becomes important. While it is easy to see that a worker will likely be unhappy about receiving a warning over their work performance, that differs from them being uninformed about why they are receiving the warning, or what will happen should they not improve their performance.
Are the employees trained adequately in the tasks and processes you are asking them to perform? Be mindful that performance management must be related to the role they have been employed to perform, and any KPI’s or targets given to an employee should be realistic.
Do not have pre-determined outcomes from meetings and discussions. This includes already drafted paperwork such as termination letters or written warnings. To do so indicates premeditated decisions which is procedurally unfair.
Maintain consistent disciplinary action
As an employer, another way to reduce the risk of attracting an unfair dismissal claim is to ensure that employees are aware of the business’s course of disciplinary action. For example, if a certain behavioural policy is broken, employees should understand how many warnings they might be given before action is taken, and what this action would be.
While many assume that it is necessary to have a procedure whereby three verbal or written warnings are given (a ‘three strikes’ scenario) before it is possible to justify termination, there is no legislative rule that says employers must adopt this system.
The number of warnings and how they are delivered will be different based on each scenario and how that applies for each individual business. Whatever system you do have in place, it is very important that consistency is maintained. For example, if you provide an employee with a ‘final warning’ and then a second ‘final warning’, at some point in the future the concept of having issued a ‘final’ warning in the first instance becomes totally diluted.
It’s also imperative that you are consistent in your application of the rules and policies of your business, particularly if your business has an Enterprise Bargaining Agreement (EBA). A 2011 unfair dismissal matter highlighted that although it was likely that a former weighbridge operator was on occasion late for work and in breach of the direction not to smoke in the office, the fact that warnings had been inconsistent in regard to late attendance and that other staff had not been subject to warnings, despite the no smoking directive in place, meant the dismissal was considered unfair.
In short, there must be not be a situation that could be viewed as one set of rules applying (or not applying) for one employee and not for others. Disciplinary actions must be fair and consistent.
Any decisions that are made must firstly be consistent with any previous warnings issued and cannot be seen to undermine the process the organisation has in place. This means that there should not be a scenario that involves multiple previous ‘final’ warnings.
If you would like any information regarding managing employee performance or handling unfair dismissal claims, please contact our Workplace Relations team who will be able to answer any queries you may have.