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King Consulting HR Consultant blog useful tips about managing employee issues, human resources management best practice, recruitment, and employment law under the Fair Work Act. Tips on how to avoid an unfair dismissal claim. Therefore, if you own, manage, or are thinking about starting a business in Australia this Blog is a great place to start. Also, you can learn how to drive high performance and increase profits through your employees. Moreover, understand how to comply with employment law under the Fair Work Act and National Employment Standards. 

To dismiss or not to dismiss, an employee, that is the question. In this article, I look at why you should not dismiss.

Do not dismiss an employee before you read this article. It could save you thousands of $’s and a lot of pain and time, in mediation, with the Fair Work Ombudsmen (FWO).

Unfortunately, as a human resources consultant, I am often brought in to consult on employee matters after things have deteriorated!

Employee engagement is not unlike a marriage. It can break down and end in a messy separation. If you do not address issues as they arise. Therefore, you must address the issues as they arise and in a procedurally fair manner.

Watch this video of how not to fire someone:

Things you can do to avoid a relationship breakdown:

Relationships can often be improved and/or ended amicably. First, the two parties need to have an agreement of what is a satisfactory and/or excellent relationship.

Often in marriage, this is not a well-covered area. The marriage relationship is often based on romantic ideas. Whereas, the work relationship of employee and employer is a more formalised agreement.

All relationships take work. Therefore, the best way to keep them on track is to have agreed expectations.

Having clarity and agreement is the key to good relationships:

Marriage and working relationships differ in a few key ways. A working relationship has documented agreements. They must have documentation and agreements outlined in them.

There are stringent rules for employment relationships in Australia. We have the Fair Work Act (FWA) since 2009. There is also, the National Employment Standards (NES). Any employer that does not pay attention to those two pieces of legislation is flirting with heavy penalties.

Under this legislation, before an employer can take any action towards an employee they must have unambiguous evidence to support the action.  Therefore, an employer cannot just end a relationship with an employee or dismiss them.

There are multiple steps an employer must take. It is no longer three strikes and you’re out.

Stick to the facts and have evidence:

In my experience as a consultant, issues with employees are based more on opinion rather than fact. Make sure there is reliable or verifiable fact, or evidence, to support the opinion and any actions taken.

Risks of unfair dismissal findings with FWA are high without facts backed up with evidence.  Therefore, it is important to follow a Fair Work compliant procedure.

Clarity of expectations:

Clearly defined expectations are necessary. Position descriptions, Performance measurements, training and documentation are all important. These documents are necessary to create clarity. In a Fair Work matter, documentation is a key element in their findings.

Must have documentation for employing people are:

  • Position Description accurately reflected the employee’s tasks and responsibilities
  • Employment Terms and Conditions
  • Pay roll
  • Accurate Payment Advice or Wage Slips
  • Tax file records
  • Evidence of Superannuation payments
  • A set of Company Policies and Procedures covering at least these:
    • Performance and Misconduct
    • Equal Employment Opportunities
    • Anti-Discrimination
    • Bullying and Harassment
    • Company Code of Conduct

Key Performance Indicators or performance measures

Setting unrealistic and difficult to measure performance criteria causes stress and lost productivity. Therefore, they need to be considered carefully. Specifically, using a system such as; SMART which stands for Specific, Measurable, Achievable, Realistic and Time bound.

Using vague or unmeasurable data is a waste of everyone’s time.  If a person has no influence or control over performance criteria, it is unrealistic. It is also, likely to cause undue stress. Some things are difficult to measure. However, there are ways to track performance. It just might need a bit of research and thorough consideration. Using tools such as survey monkey to obtain feedback from customers is an excellent and low-cost solution.

Gallup group are well known for finding ways to measure data on all sorts of things. Measure what is important in your business. Make sure it is something this employee has influence over and/or can control. Read this article on key performance indicators for further insights.

Case in point in consideration to dismiss: “A business owner said to me that he had some problems with one of his managers” as follows:

  • Not meeting Key Performance Indicator’s (KPI’s)
  • Inadequate delegating to of staff
  • Insufficient training of others
  • Slacking off
  • Unreliable
  • Being a bit of a bully to other staff

Vitally important questions to ask about this case:

Not meeting KPI’s:

  • Are the KPI’s in question known to the Manager and documented
  • Are they realistic and measurable?
  • How are they measured and are the measures reliable and evidence-based (such as a report which is independent and reliable)?
  • Are they part of the Manager’s job description and in writing?
  • Are they part of the employment contract and is it signed off by the Manager?

Delegation:

  • Is delegation part of the Manager’s position description and agreed to or signed off by the Manager
  • Do the other employees know this Manager has the right to delegate
  • Do they listen to the Manager and do as directed?

Training:

  • Is training of staff, part of this Manager’s position description, does it form part of the employment contract, has the manager signed off.
  • Do they know how to train?

Slacking off:

  • What do you mean by slacking off?
  • Can you give evidence of it?
  • Have you brought this issue to the Manager to improve it?

Unreliable:

  • What do you mean by unreliable and can you give evidence of this?
  • Have you discussed it with the Manager, documented it and have you agreed on a course of action and by when?

Bullying:

  • Bullying is a serious accusation; can you give evidence of bullying?
  • Have you discussed and documented with the Manager and have you agreed on a course of action and by when?
  • Do you have a harassment and bullying policy and is the procedure documented and have you followed it?
  • Is the Manager aware of this policy?
  • Can you prove the Manager is aware of the policy?

Other things to consider:

  • Is there any pattern to these complaints or have they just started?
  • What might be happening in the Manager’s life outside of work that may be having an impact on their ability to perform their job?
  • Have you discussed any of these issues with the Manager in question and what was the outcome?
  • Is the Manager aware that you have any issues with them in their performance of their duties?
  • Are any of these areas of responsibility new to the Manager?
  • How long has this person held this position?
  • How long have these issues been occurring?
  • Are the issues possible to independently verify?

The key test:

  • If this person were to be dismissed and took the matter to the FWO would you be able to prove, beyond doubt, that you have not acted in a harsh or unreasonable manner
  • That you have taken all reasonable steps to help the person to rectify the problems

Decision to dismiss, or discipline, based on the answers to these questions:

Whether you have good grounds for dismissing an employee or not, are based on answers to the above questions.

The answers provided to me by the employer in this example were insufficient grounds for a dismissal. They did show, a need for a lot more clarity in the employment relationship.

Further questions to consider, do you have:

Evidence:

  1. Evidence (fact based and in writing)
  2. Signed agreement

Independent Witnesses:

  1. Independent witnesses that can confirm behaviour
  2. Another employee who can confirm the actions is good but be cautious of asking leading questions. Therefore, the questioning technique must not be leading rather, it must be open. For example, “where were you sitting on Friday?” is open. Whereas asking: “were you sitting near Sue and Michael on Friday” is leading, because it draws attention to Sue and Michael.

Documentation:

  1. Does the employee have a position description they understand?
  2. Also, is there a clear and unambiguous employment contract detailing the procedure you will follow in a case of inferior performance, signed off, and agreed to, by the employee
  3. Do you have company policies and procedures and is everyone familiar with them?

Proof:

  1. Can you prove that your employees know about these policies?
  2. Has there been discussions any of the issues with the employee, so they are aware of them and have you reached an agreed course of action
  3. Was a specific and detailed time stamp set on actions to rectify the problem, stating by when the actions need to be complete?
  4. What have you done to help the employee to improve or rectify the issue/s
  5. Was training, counselling or mentoring offered? Can you prove it?

Only when you can say yes to all these questions and prove it, do you have grounds to take it further. Smart Company wrote an article about cases where the employer won you can read it here. They invariably won on documentation and evidence.

In Conclusion:

This article should give you some good guidance on whether you can dismiss or not. You may need to take some more time and have disciplinary discussions before you can confidently dismiss an employee.

Be objective, be clear, be fact and evidence based. Make sure you have done all that you can to help the employee to rectify issues, to stay risk-free.

Contact us before you take any action.

How can we use HRM to optimise employee performance and drive profits?

According to inc.com magazine:

“The responsibilities of a human resource manager fall into three major areas: staffing, employee compensation and benefits, and defining/designing work. Essentially, the purpose of HRM is to maximize the productivity of an organization by optimizing the effectiveness of its employees.”
Human Resource Management – Encyclopedia – Business Terms | Inc …

Other definitions are similar, so what do you use HRM for in your business?

Why do so many businesses, directors, owners and general managers seem to use HRM simply to comply with workplace law?
In the words of one business owner, I recently spoke with: “If you talk about Human Resources, I switch off, there is nothing sexy about it, but if you talk about driving profits through your existing team without spending a cent more on advertising, now that, is sexy and I am listening.”

Ugh! That is the point of Human Resources Management (HRM), to ensure employee engagement and drive profits into the business. It seems lost in translation! Many, it seems, miss the point of Human Resources Management. It is, as the definitions all state: “to optimize the effectiveness of a business’s employees, which would lead to great profits!”

What might be going wrong here with HRM?

It appears many businesses’ and the people in them, have lost site of the point of Human Resources Management tools, ‘to optimise the team and drive business profit’. Too much emphasis is on following workplace law with policies and procedures and contracts. Not enough emphasis is on what will empower employees to drive profits. It is logical, to have engaged employees results in better performance, and better performance will drive profits.

What can we do better in HRM?

Place the emphasis back on the point of HRM which is to optimise the employees to drive profits in business and grow. Break down each part of HRM with an emphasis back on optimising growth and empowering the employees to drive profits.

Link position descriptions to profit as part of the HRM:

Position Descriptions (PD’s)should focus on the core skills and competencies needed to achieve results in the role they, not just the tasks involved. Also, as businesses change over time, these PD’s need to adjust. Further, an agile business needs adjustment to achieve results.  The tools used to direct and instruct employees need to be agile to allow for changes in direction and focus.

Return on investment through good HRM practices:

As a business owner myself, I hire people to achieve outcomes in return for the money I pay them. It makes sense to view an employee as an asset and service provider just like any other supplier I use. Therefore, employees position descriptions need to be in detail about how I expect to see a return on investment. Outlining what key parts of their role are related to bringing a return to the business is a vital part.

Conducting regular performance plans and review (PPR’s) to improve performance is part of HRM:

Performance Plan and Review (PPR’s) tools need to focus on achieving results not just in terms of profit but also on how behaviour. Equal emphasis on the behaviours necessary to continue the business growth and keep it on track with the mission, vision and values must be as important as the profit drivers.

Setting Key Performance Indicators (KPI’s) is traditionally on the hard numbers relating to profit. However, just achieving key performance indicators (KPI’s) is not enough. Ensure the behaviours map to the business mission, vision and values by also measuring behaviours used to achieve the KPI’s.

For example, having an all-star sales person is great. However, is not sustainable or desirable if they are achieving their star status by lying to customers, fudging their figures or disrupting the rest of the team. Consequently, having regular reviews of both the KPI’s and behaviours to achieve them is vital.

Driving innovation through feedback is part of HRM:

Some of the most innovative businesses have specific human resources management initiatives to aid their employees to be innovative. A simple change in approach to Performance Reviews allowing them to be two-way discussions can help drive innovation. Going one step further and making them performance Plan and reviews will drive further opportunities for collaboration. This in turn drives innovation and creativity.

Even the team members that are not doing so well have information to help you improve your business. Rather than just telling them their performance is not good, ask them what they think and what they can do to improve. After analysing figures and conducting trend analysis a discussion with employees is likely to give invaluable insights.

In conclusion on HRM and its role in every business:

As you can see from the above points, human resources management tools and techniques, can drive business growth and optimise employees to deliver profits. Is your business using them to drive profits or micro manage? If you are not placing the emphasis in the right place with your HRM tools you are not driving growth in the business.

These are just a few of the ways any business, small, medium or large can use HRM to engage their employees and drive profits. There are many more. We regularly write articles about HRM best practice so check our blog for more helpful tips.

If you enjoyed this article you might also like Difficult PeopleJust Relax and Bias in Performance Management.

If you would like to check if your business is optimising your employees using your HRM tools to drive profits and growth get in touch to see what we can do to support, you.

Dealing with Difficult People at any time can be a challenge, at work it is even more stressful. How to make dealing with difficult people at work easier is about how you set boundaries and expectations from the beginning.

Dealing with Difficult People is all about how you start the relationship. Focus on behaviour that is productive and professional. Remember, ‘where focus goes, energy flows’. So, be clear what is, good and bad behaviour (misconduct), document it and manage it!

Behaving badly, in the work place is often a matter of opinion. To ‘err is human’, we all make mistakes, at times displaying poor judgement. Therefore, to keep everyone playing nicely, in the work sandpit, focus on good behaviour and make it clear what is acceptable and not right from the beginning.

Consequently, having the company vision, mission and values statement as your business mantra of how ‘we operate around here’ it vital. Repeat it in all your documentation, discussions and how you manage.  This is how you define your company culture and make it stick.

OK, there will be occasions, unfortunately, when we will all do the wrong thing, and someone will behave badly.  How you deal with it will make all the difference in the moment and in the future.

That is why, a company policy around performance and misconduct is necessary. A policy alone is not enough though, Document and follow the procedure associated with the policy as well. Further, you need to ensure every one of your employees knows the policies and procedures and confirms their understanding with their signature.

Make it clear up front what you consider to be bad or unacceptable behaviour. Thereby, providing you with a clear set of boundaries around acceptable conduct. Further, this clarification will be your best guide for steering your employee’s behaviour both at work and when representing the business externally. If alcohol is involved, people’s behaviour can change dramatically, so making it clear and understood about what acceptable behaviour up front is, will make a huge difference to how you can legally respond to any incident.

Following are two examples of bad behaviour cases that caught media attention, one resulted in a finding in favour of the employer while the other did not:

A Qantas pilot on a stopover had too much to drink with colleagues as well as imbibing marijuana resulting in some questionable behaviour. Although he was a very good pilot with a long-standing track record of good behaviour Qantas followed their policy and procedure in its disciplinary action which resulted in the Pilot’s dismissal from employment.

The Pilot argued that it was unfair and a “One off incident”, however the Fair Work Commissioner ruled in favour of Qantas. The finding in favour of Qantas was due to their following their own policies and procedures in a fair procedure. Whereas, the Pilot lost the claim of Unfair Dismissal because according to the Evidence he had chosen to intoxicate himself.

Another very interesting and complex case is Zeb Dewson vs Boom Logistics. Dewson argued his dismissal from employment was unfair, on the basis it was harsh and unreasonable.

Boom Logistics asked a consultant to investigate the work environment on some of their sites. The consultant reported that the worksites were toxic, rife with bullying and harassment posing a serious risk to the health and safety of the employees. Further, the consultant recommended addressing the issues in various ways including potentially relocating some of the employees to other sites and taking disciplinary action with others.

The Company held a tool box talk on one of the problematic sites with the team including supervisors. At the meeting, management informed the team, that the toxic culture had to change. Further, that they would take actions to ensure it did change. After the meeting a person informed one of the managers of an incident in which Dewson assaulted him.

There is a of detail in this case which I will summarise as follows:

In short, it was the basis of this information that resulted in the employer dismissing Dewson from their employment. It unfolded in the Fair Work Commission proceedings that while Dewson had problematic behaviours, the procedures undertaken by the employer where equally problematic.

Firstly, they were trying to remedy a situation they had allowed to unfold, but they went about it without a fair process. They did not investigate the allegations made against Dewson or the sequence of events of the alleged incident. They combined several incidents together to form an opinion about Dewson rather than look at the facts and provide substantial evidence.

Secondly, there was a ‘head butting incident’ at a Christmas Party two years before, that Dewson apparently committed however it was not address at the time it occurred.
That incident alone if addressed appropriately, could have been grounds for his dismissal from employment for serious misconduct. Furthermore, it could be argued by the employees including Dewson, that such behaviour had no consequence, was therefore acceptable because the incident was not appropriately addressed at the time it occurred.

Consequently, the Fair Work Commission found the Dismissal from employment of Dewson to be flawed. This was despite the serious misconduct of Dewson which was not in dispute. This case highlights the importance of following procedural fairness and acting swiftly on any deviance from desired behaviour, but doing so in a calm, legally acceptable and well-structured manner.

Following a legally acceptable and well-structured procedure for a discussion about behaving badly, unprofessionally/inappropriately, (misconduct) is not difficult:

Having good quality procedures and documentation in place makes disciplining an employee much easier.

  • Invite the employee to a discussion as soon as possible, clearly outlining the purpose; to discuss the behaviour in question
  • Allow the employee to have a witness present at the meeting
  • At the discussion draw the employee’s attention to the specific behaviour considered to be inappropriate and reference the company policy
  • Allow the employee time to respond
  • Let the employee know what needs to change and by when
  • Be specific about the time available for improvement to occur
  • Let the employee know what the procedure will be from this point
  • Document the discussion, have the employee sign it and placed on their file
  • Let the employee know what will happen if the problematic behaviour continues, in other words provide them with a warning

The above procedure is a fair and reasonable process. It depends on the nature of the behaviour, as to the consequences. To make it all upfront and clear, this information needs to be in the Company policies and procedures, which each employee must be aware of. Further, if you have a documented procedure relating to a company policy, (which I highly recommend you do) make sure you and your employees follow the procedure especially if dismissal from employment is likely to occur or you risk an unfair dismissal finding.

Reality is that acceptable behaviour is subjective depending on the circumstances:

Often people are not aware their behaviour is problematic because of its effect on others. We are all guilty of saying or doing something we do not realise has a negative effect on others. Consequently, we need to have an opportunity to consider the effect we might be having and how to improve it.

For example:

One of my clients employed a variety of people from various countries, religions, genders and education levels in their logistics team. There was one group of Pacific Islanders including Maoris, Tongans, Fijians, Samoans and others of the Region who all played Rugby and had a friendly rivalry. Often they would play a social game of pass the Rugby ball outside the Logistics building during breaks and down time. They would yell out to each other things like: “Pass it to me you blxxdy Coconut”, Oye you Black Basxerxd and so on with none of them taking offence.

As the acting head of Human Resources Management at the Company, it was my role to pull them to one side and explain why this practice was not acceptable. They represented the Brand of the Company, often wearing T ’Shirts with the Company Logo on. Also, they were outside the building and known to work there. Further, we often had visitors from clients who may not be aware of the friendly rivalry and lack of malice in the shouts.

We collectively agreed that during lunch time they could go across to the near by park and play but change out of their clothes with the log on. Also, we agreed that what they said outside of work was their business but not when they were wearing the company Logo on their clothes.

In conclusion:

The best way to handle difficult people at work is legally and making it clear upfront what is and is not acceptable behaviour.  Get everyone in your business clear about the ‘company culture code’, the behaviour mantras, the policies and procedures.

Do less discipline and more rewarding! It is the age old, ‘Stick and Carrot’ routine, but it is well known that humans respond better to a Carrot or a Reward than a Stick or Punishment. Therefore, make sure your employees know you pay attention to their behaviour.

If you like this article you might also like:

 Emotional Intelligence

 Stress Less

 9 Ways to deal with difficult employees

How can you, just relax when you run a business? You can, if your team share your vision for growth and behave according to the agreed set of values.

To relax about the day to day and focus on business growth rather than working in it every day, have a team that drives the business operations. Make everyone in your team, clear about your business vision, values and purpose. Get everyone aligned to it and measure each person according to achieving it. Soon you will see a shift in energy and focus.

What are the point of Human Resources Management tools and products in your business?

Turn your human resources products into useful tools to manage your business growth through your team. Instead of legal compliance documents, you hope to keep you clear of a Fair Work dispute, turn them into useful management tools.

Do you have a set of company policies and procedures?

Your company ‘code of conduct’, can become a driving behaviour guide. Outline the behaviours required to meet your business values and the overall growth strategy. Does it, or is it just a document that took some time to write up and/or expense that is paid  little attention other than, being given to people when they first join. If you would like help with company policies and procedures check out our services page we have a full suite available and will even guide you on which ones you need.

Make your company policies and procedures into useful guides to grow your business through your team.

Do you have a set of values, a purpose, a mission statement? If you don’t, relax, you can down load, our free guide here. If you have statements such as, “we strive for excellence”, what does that  mean as behaviours. Make the statement meaningful in terms of actions and add that to your company policies and procedures. Have each of the business values as something more meaningful than a bland statements. Take them from vague one word lines to meaningful explanations of behaviours and document them. They become your mantras of: “how we behave around here”. Include your team in creating these mantras. Share your vision with the team and seek their alignment and input.

A vision is not useful to your team if it is not shared and if they don’t agree.

Share your vision and values, make it part of your business mantra, measure and manage everyone according to what the agreed behaviours to demonstrate the values. There is an old saying: “What gets measured, gets managed” and “where focus goes, energy flows”, make sure everyone is clear on what is being measured and where to focus their efforts. You can relax, the team will start to measure their own behaviours. They will assess themselves according to the values and vision and will place their focus on achieving the business goals for growth and behaving according to the company values.

Sit back, relax, and watch your business grow through an aligned team.

If you want your business to grow and your team to behave according to the agreed values, make everyone accountable to delivering them. Use your management tools and processes to align everyone to that end, and watch your business grow. Once a quarter, go through each person’s performance according to the Key Performance Indicators that drive both growth and the company values in their behaviours. Set new performance objectives and listen for ideas to improve the overall business growth. Relax and let your team become your biggest growth drivers. Get the team involved in measuring and managing according to growth, behaving according to the business values and their alignment to the vision. After all, they want to continue being employed and maybe even earn a bonus.

Wishing you all a more relaxed and happily growing business with an aligned team.

If you enjoyed this article you might also like 10 ways to stress less, and why do human resources management.

If you would like support in setting up a human resources management system so you can relax please contact us.