Do Not Dismiss

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.