Managing poor performance


Taking appropriate action to manage misconduct by employees is important to avoid legal consequences but requires careful attention to detail.

For example, an employer’s disciplinary process may lead to a constructive breakdown of employment if it puts the employee’s health and safety at unacceptable risk, or exposes the person to unreasonable reputational risk due to lack of confidentiality. This may be the case if the process is unfair or prolonged, or otherwise conducted in an unreasonably aggravating manner.

In Goldman Sachs JBWere Services Pty Ltd v Nikolich in 2007, the Federal Court ruled the employer’s delay in taking appropriate steps to deal with alleged workplace harassment and bullying amounted to a breach of the employer’s obligation to maintain a safe and healthy work environment.

A breach of this obligation would entitle employees to consider themselves to be constructively dismissed.

In the case Harley v Aristocrat Technologies Australia Pty Ltd in 2010, an executive claimed she was forced to resign because of the employer’s failure to properly investigate bullying and harassment complaints. Instead of trying to resolve the complaints, the employer instituted a performance management process, which the tribunal ruled was unjustified.

The employer was found to have initiated the unfair termination of employment. The claimant was awarded compensation of six months’ pay.

A disciplinary process itself may also be considered workplace bullying under the new anti-bullying scheme in the Fair Work Act 2009, if it’s judged to cause a safety risk. This can be avoided by informing a worker about inappropriate behaviour in an objective and confidential way.

How to manage bullying allegations

HR practitioners can use this checklist to ensure they’re handling allegations of misconduct fairly, thereby avoiding the risk of constructive dismissal.

Natural justice

Design a process to give the accused employee sufficient information about the allegations and a fair opportunity to respond. If the employee would prefer to provide a written response, this should be allowed.

Suspension

Suspend the accused employee only if the allegations are sufficiently serious, the employee is likely to interfere with any investigation, or the employee’s presence in the workplace may cause harm to the business. A suspended employee must receive full pay during the suspension unless the legislation or an enterprise agreement says otherwise.

Independence of the investigator

The person tasked with determining the allegations must be able to act fairly and impartially.

The accused must cooperate

Generally, an employee must cooperate with the investigation in a timely and constructive way. Failure to do this may be considered misconduct in itself.

Don’t delay

The investigation should not be unduly protracted, to avoid stress for all parties involved.

Respond to findings appropriately

The person who determines the action to be taken should not prejudge the outcome of the investigation and should seek a response from the accused about the findings before making a final decision.

This article is part of a four-part series on constructive dismissal. Keep reading about constructive dismissalbullying and performance management

This article is an edited version. The full article was first published in the October 14 issue of HRMonthly magazine as ‘’Dealing with discipline’. AHRI members receive HRMonthly 11 times per year as part of their membership. Find out more about AHRI membership here.

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Managing poor performance


Taking appropriate action to manage misconduct by employees is important to avoid legal consequences but requires careful attention to detail.

For example, an employer’s disciplinary process may lead to a constructive breakdown of employment if it puts the employee’s health and safety at unacceptable risk, or exposes the person to unreasonable reputational risk due to lack of confidentiality. This may be the case if the process is unfair or prolonged, or otherwise conducted in an unreasonably aggravating manner.

In Goldman Sachs JBWere Services Pty Ltd v Nikolich in 2007, the Federal Court ruled the employer’s delay in taking appropriate steps to deal with alleged workplace harassment and bullying amounted to a breach of the employer’s obligation to maintain a safe and healthy work environment.

A breach of this obligation would entitle employees to consider themselves to be constructively dismissed.

In the case Harley v Aristocrat Technologies Australia Pty Ltd in 2010, an executive claimed she was forced to resign because of the employer’s failure to properly investigate bullying and harassment complaints. Instead of trying to resolve the complaints, the employer instituted a performance management process, which the tribunal ruled was unjustified.

The employer was found to have initiated the unfair termination of employment. The claimant was awarded compensation of six months’ pay.

A disciplinary process itself may also be considered workplace bullying under the new anti-bullying scheme in the Fair Work Act 2009, if it’s judged to cause a safety risk. This can be avoided by informing a worker about inappropriate behaviour in an objective and confidential way.

How to manage bullying allegations

HR practitioners can use this checklist to ensure they’re handling allegations of misconduct fairly, thereby avoiding the risk of constructive dismissal.

Natural justice

Design a process to give the accused employee sufficient information about the allegations and a fair opportunity to respond. If the employee would prefer to provide a written response, this should be allowed.

Suspension

Suspend the accused employee only if the allegations are sufficiently serious, the employee is likely to interfere with any investigation, or the employee’s presence in the workplace may cause harm to the business. A suspended employee must receive full pay during the suspension unless the legislation or an enterprise agreement says otherwise.

Independence of the investigator

The person tasked with determining the allegations must be able to act fairly and impartially.

The accused must cooperate

Generally, an employee must cooperate with the investigation in a timely and constructive way. Failure to do this may be considered misconduct in itself.

Don’t delay

The investigation should not be unduly protracted, to avoid stress for all parties involved.

Respond to findings appropriately

The person who determines the action to be taken should not prejudge the outcome of the investigation and should seek a response from the accused about the findings before making a final decision.

This article is part of a four-part series on constructive dismissal. Keep reading about constructive dismissalbullying and performance management

This article is an edited version. The full article was first published in the October 14 issue of HRMonthly magazine as ‘’Dealing with discipline’. AHRI members receive HRMonthly 11 times per year as part of their membership. Find out more about AHRI membership here.

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