Under current Labor policy the unfair dismissal laws are set to tighten considerably which will impact on small businesses.
While it isn’t entirely clear yet when the new rules will apply or what they will entail, employers do need to start thinking about implementing more robust processes for working with poorly performing employees.
It’s not just a case of preparing for possible legislative changes either – the problem is poor performance impacts on everyone in the business. Employers can’t afford to turn a blind eye or hope for the best.
Instead it is important to work thorough a structured performance management process — and it isn’t nearly as daunting or time consuming as it sounds.
Joe Catanzariti, Head of Clayton Utz workplace relations and employment law advises the single most important thing an employer should do is to put everything in writing.
“When disputes arise the first thing to do is go back to the paperwork (and) it never ceases to amaze me when people think all you need is a handshake”, says Catanzariti.
A hand shake doesn’t cut it when things go wrong.”
Instead employers should take the following steps:
Step One – Starting the performance management process
- Talk to the employee, point out your concerns and what you feel needs to be done to improve performance.
- Write up notes recording what you discussed and what action needs to be taken and give the employee a copy.
- Provide an opportunity for the employee to respond to your concerns in writing and file it. Step Two — Formalising the warnings
- If the situation doesn’t improve to the standard required, arrange a formal meeting and give a written letter to the employee outlining your concerns and the action required to remedy the situation and a timeline for this to occur.
- Provide the employee with an opportunity to respond formally and offer assistance and/or training to the employee to provide every chance for the situation to improve.
- Record regular, dated file notes which clearly outline the performance issue in question and, if it is the case, the employee’s failure to rectify his or her performance to the appropriate standard required.
Step Three — Dismissal
- If the decision is made to dismiss the employee, write a letter of termination which clearly outlines the reasons for the dismissal, the warnings previously provided and the assistance that was offered in order to help the employee rectify his or her behaviour or performance.
- Focus on the role and responsibilities of the position in question and the employee’s failure to perform.
- Outline the next steps to take, such as when the employee is to finish, final pay details and any other arrangements that need to be made for the employee to leave the employment.
- File this letter on the employee’s record, as well as any response received from the employee. · Inform any other staff members of the termination by word of mouth or by memo. Keep it brief and not list any specific reasons regarding why the employee is leaving.
Reasons for exiting an employee
The reasons for the termination must be fair, reasonable and relevant to the role and responsibilities of the employee.
Employers should not exit employees for subjective reasons such as they do not like the way an employee dresses or the employee’s accent.
Any dismissal which is conducted for reasons which are harsh, unjust or unreasonable may result in an unfair dismissal claim and if successful in their claim an employee can be reinstated to their former position, redeployed to another position, or awarded compensation of up to 6 months remuneration.
At the end of the day in these sorts of fraught employment situations it is important to follow a due process, stick to the facts and focus on the roles and responsibilities of the job in question.
At all times put things in writing — it is the first thing a lawyer will ask to see if the issue escalates and an unfair dismissal claim is lodged!
Adrienne Unkovich is MD, Workforce Guardian — Australia’s number one online employment relations service.
About Workforce Guardian Workforce Guardian is a comprehensive online employment relations service that helps employers navigate confusing employment law in order to properly hire, manage and fire employees:
- Fully compliant Employment Contracts and Independent Contractor Agreements — easy and quick to create using an interview style format,
- Step-by-step employment processes and legally compliant document templates such as employee evaluation forms and employee termination forms,
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