Elephant in the room

More than five years since the Fair Work Act took effect on 1 July 2009, small businesses are still being held to ransom by under-performing employees who pull the ‘unfair dismissal’ card whenever their work performance is challenged.

A manager’s key focus points are productivity, targets and budgets: the task of undertaking performance management is often not a strong point. Managers often view this as one of the less desirable responsibilities that come with their job, so when an employee’s under-performance starts to impact on outcomes it creates an uncomfortable situation that may result in frustration, anger and denial. It often leads to a level of exasperation often resulting in termination, leaving an enraged employee to seek vengeance through an unfair dismissal application.

What comeback does a business have against an unfair dismissal claim?

In managing under performance it is essential that the business is able to demonstrate an even-handed approach to performance management throughout the process.

Time poor managers focussed on divisional work outcomes, flinch from the unwanted distraction of workflow disruption created by a troublesome employee. In many cases, unplanned and unprepared discussions between manager and employee will have been the crux of the performance management process. More often than not the salient points from the discussions will not have been formally noted and, generally, the employment consequences if the behaviour continues has not been clearly explained.

The biggest mistake made by businesses is failing to document the disciplinary process. Missing a step along the way in preparing for an unfair dismissal case can be the difference a win or a loss.

The Fair Work Commission (FWC) must remain impartial to each application presented, and can only consider the evidence presented.

Win or Lose? Do you have any control of the outcome?

While opinions are plenty across businesses on the fairness of the outcomes of unfair dismissal claims, the fact is that the FWC assesses each application based on its own circumstances, and takes rigorous steps to ensure a fair outcome. Where unfair dismissal is granted, the FWC clearly defines its reasons.
Statistics indicate that, for varying reasons, more applications are dismissed by the FWC than are granted. That said, those applications still cost business time, money, and resources that could be placed in more profitable, positive, and productive areas.
To be a step ahead, businesses need to understand the necessity to correctly handle performance management at every step of the process.
Which vital steps can aid the process?

  • Ensure the message about the workplace behaviour is clear;
  • Ensure the employee understands the issues and the consequences;
  • dvise the employee that their employment may be at risk unless they improve their performance;
  • Provide sufficient time for the employee to improve;
  • Document all communication between you and the employee throughout the performance management process.

These are just some of the highly effective steps you can take to protect your business from the intimidation of a legal challenge.

Understanding how to avoid potential pitfalls in the management of problem employees is critical to how you manage your business overall.

Rather than second-guessing the process, gain up-to-date expert advice to guide you through the legislative maze to protect your business, your productivity, and the moral of your people.

Still worried about an unfair dismissal claim?

We strongly advocate that:

  • Workplace policies are in place: your strongest guide to acceptable workplace behaviour
  • Initiate a performance management process for use by all managers;
  • You protect your business with proven guidance from an established HR Consultancy.

Contact us on 02 4353 4453 or info@head2headhr.com.au We’re here to provide you with workable solutions.
To be a step ahead, businesses need to understand the necessity to correctly handle performance management at every step of the way.