4 august 2016 difficult employees - tips & traps of management
TRANSCRIPT
DIFFICULT EMPLOYEESTips and Traps of Management
DIFFICULT EMPLOYEESTips and Traps of Management
Chairperson:
Nick Duggal, Partner
Presenter:
Liz Aitken, Associate
PERFORMANCE MANAGEMENT
ILLNESS OR INJURY
• Termination of employment (and constructive dismissal)Unfair Dismissal
• Adverse action on basis of protected attributed or exercise of workplace rightGeneral Protections
• Direct / indirect discrimination by reason of a protected attribute
• Vicarious Liability Discrimination
• OHS Act 2004 (Vic)
• Fair Work Act 2009 (Cth)Workplace Bullying
• Fundamental terms of employment
• Trust and confidenceBreach of contract
• Compensable work-related injuryWorkers
Compensation
Performance managementPerformance management
Valid reason
Notification of the reason
Opportunity to respond
Opportunity to improve
Previous warning
Opportunity to have a support person
Any other relevant matters
‘A fair go all round’‘A fair go all round’
Best practiceBest practice
1. Initial verbal counselling
2. Informal process
3. Formal process
Fundamental principle:“fair go all round”
Procedural obligationsProcedural obligations
• Contract
• Enterprise Agreement
• Award
• Workplace policies
Mawkes v State of Victoria
Refer to meeting and what was discussed:
1. any previous issues/counselling re performance
2. current concern � how does this link to previous performance issues?
3. decision re disciplinary action � e.g. Formal Warning
4. indicate potential consequences of failure to improve
5. invite employee to contact you if further directions or support required
Documenting itDocumenting it
Unclear TargetsUnclear Targets
No:
- recorded requirements
- clarity for employee
- measure of performance
- assessment of capacity to perform role
InconsistencyInconsistency
• All employees to be treated the same
• Apply policies / procedures consistently
Fagan v Department of
Human Services
� No fixed time or number
� Consider:
1. severity of underperformance
2. level of required performance
3. impact
4. previous warnings
WarningsWarnings
Lim v Comcare [2016] FCA
‘Reasonable management action’‘Reasonable management action’
1. Clear KPIs
2. Respond promptly
3. Be consistent
4. Comply with internal/external procedures
5. Document it
6. Continue monitoring
ILL OR INJURED WORKERSILL OR INJURED WORKERS
• Take reasonable steps to eliminate or mitigate risk to health and safetyOHS
• Adverse action on basis of protected attributed or exercise of workplace rightGeneral Protections
• Direct / indirect discrimination by reason of a protected attribute
• Vicarious Liability Discrimination
• Termination of employment (and constructive dismissal)
Unfair Dismissal
• OHS Act 2004 (Vic)
• Fair Work Act 2009 (Cth)Workplace Bullying
• Fundamental terms of employment
• Trust and confidenceBreach of contract
• Compensable work-related injuryWorkers
Compensation
Managing ill or injured workerManaging ill or injured worker
1. Inherent requirements
2. Reasonable adjustments
3. Unjustifiable hardship
“An employer must not dismiss an employee because the employee is temporarily absent from work because of illness
or injury.”
Section 352, Fair Work Act 2009
UNLESS � unpaid leave for more than 3 months in one period or for more than 12 weeks in total in a 12 month period
• 40% of sick days taken on a Monday
Notice & EvidenceNotice & Evidence
• Notice “as soon as practicable”
• Evidence to “satisfy a reasonable person”
• Don’t play doctor
Marshall v Commonwealth
Independent Medical ExaminationIndependent Medical Examination
• ‘Reasonable and lawful direction’
• Express requirement? Contract / other instrument
• When?
− identified risk of injury
− OHS concern
• Inform employee of reasons
• Focus on occupational requirements
Grant v BHP Cole [2014] FWCFB
• Lack of medical information
• Genuine OHS concerns
• Reasonable direction to attend IME
• Repeated refusal to attend
"In the circumstances, it is entirely reasonable that the Respondent would have at least sought further advice and information on the Applicant’s fitness to ensure that it was not exposing the Applicant, or others, to unacceptable risk from any
limitation arising from the injury or by virtue of his lengthy absence."
Failure to comply with directionFailure to comply with direction
• Compare: Cole v PQ Australia [2016] FWC
• One day off
• Medical certificate provided
• Informed employer suffering depression
• Employer directed attendance at IME � refused + fired
• Unfair dismissal found:
“no reasonable basis to assume that the employee had any illness that related to his capacity to perform the inherent requirements of his job”
• Employees must provide notice of absences
• Medical evidence to satisfy a reasonable person
• Obtain further information if required
• Consider the inherent requirements
• Reasonable adjustments – temporary or permanent
Wrap upWrap up
Common language of management:
- ‘fair go all round’
- ‘reasonable management action’
- ‘reasonable and lawful direction’
- ‘reasonable adjustments’
Contact UsContact Us
Nicholas Duggal
Partner
TressCox Lawyers
T: 03 9602 9744
Elizabeth Aitken
Associate
TressCox Lawyers
T: 03 9602 9708
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