‘Get the ducks in a row’ before you sack anyone, says expert

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‘Get the ducks in a row’ before you sack anyone, says expert

‘If all your ducks are in a row, dismissing an employee doesn’t have to be an unpleasant experience - at least for the employer,’ HR participants at a recent seminar have been told.

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‘If all your ducks are in a row, dismissing an employee doesn’t have to be an unpleasant experience - at least for the employer,’ HR participants at a recent seminar have been told. 

Leonard Lozina, a Partner with law firm Dibbs Barker Gosling (NSW) took the seminar through a ‘how to’ guide on conducting justifiable and lawful dismissals for misconduct or unsatisfactory performance. 

He said  that if employers went about the process of dismissal in the correct way they could avoid many of the pitfalls. 

Performance management

Lozina said a major problem is that when most employers start the performance management process it is already too late. 

He said employers should have a process of counselling, followed by giving the employee an opportunity to improve and, if no improvement is forthcoming, the employment may be terminated.

Lozina said it was too late if the employer has commenced poor performance management when the employee’s particular performance problems have already become serious, obvious or pronounced. 

It was also a mistake if the action taken to deal with the employee’s poor performance was ‘motivated by a covert desire to terminate his or her employment, rather than a genuine desire to improve his or her performance’. 

‘The key to it all is the supervisor setting up the review process,’ he said. 

Key components of review process

Lozina said key components of the review process were: 

  • Department or section staff meetings are not a substitute for one-on-one meetings
  • Beware of the “ganging-up” effect or bullying when counselling is done at staff meetings
  • Avoid ‘parading’ the employee’s mistakes in front of others
  • A clear reporting structure is essential
  • The importance of documentation cannot be underestimated.

‘When the employer is grappling with what has occurred, both the good and the bad has to be documented,’ he said. 

Checklist - to do

Lozina said the employer must be sure that he/she had :  

  • Warned the employee that his performance was poor and that his employment was in jeopardy if it did not improve.

  • Conducted a proper investigation of the allegations of poor performance.

  • Informed the employee of the areas of performance which required improvement.

  • Gave the employee an opportunity to respond to the allegations and to improve.

  • Provided written notice of termination.

Warnings

Lozina said a key point is the length between warnings. He said they should not be so far apart as to lose their effectiveness, nor so close together that the employee had not had time to improve performance. 

‘Also there is the need to give a final warning so that the employee is clear that if the action continued termination will happen,’ he said. ‘The courts have made it clear they want this.’ 

Difficult situations 

Lozina said it is very difficult for employers when the employee is making an effort but not exhibiting the skill needed to perform the work. 

He said employers should make sure the performance criteria are appropriate and reasonable in light of the employee’s duties.  

‘It is no good setting levels of performance if they are unachievable, as the courts won’t accept that as a failure to perform,’ he said. 

‘It is also difficult when the employee is so clearly not up to the task that no amount of performance counselling or training will render his or her performance satisfactory.’ 

However whatever the situation the employer must make sure the employee is aware of both the criteria and his or her failure to meet them. 

Case example - no warnings

Lozina referred to the case Sabeto v Waterloo Car Centre Pty Limited, trading as Red Spot Rentals (2003). 

‘In this case at first instance the termination was not harsh, unjust or unreasonable,’ he said.

Sabeto managed the Melbourne office of a small car rental business “pay-as-you-park” operation. 

When management ran a random audit they found a safe and cash drawer left open while the premises was unattended and the cash and banking had not been done. 

As well there was a backlog of mailing and general correspondence, fuel receipts not reconciled daily, concierge commissions not paid for more than months, and the office appeared filthy.

Sabeto absented himself from the workplace on the afternoon of the random audit, turned off his mobile phone and was unwilling to discuss the issues. Lozina said the case was overturned on appeal.  

‘There had been no warnings and the problem had not been brought to his attention before the sacking,’ he said. ‘There had been no procedural fairness.’ 

Relevant documents

Contracts, policies, awards and agreements were all important in relation to supporting the employer's case in dismissal matters. 

Lozina said job descriptions were very important, as were probationary periods and policies.

Job Description 

Lozina said if an employee could say ‘I didn’t think that was part of my job’ and there was no documentation that it was then dismissal becomes more difficult. Employers should be very specific with duties.  

Probationary Periods 

He said an employee must be aware of the probationary period prior to commencing employment, and its length must be determined in advance. 

‘Probationary periods are generally for three months, if you want longer than that you need a good reason,’ he said. 

He said both sides should realise that a probationary period was for exactly the period of time stated. 

In the case Briggs v Centreline (2002) the AIRC found that an employee of Centreline was able to bring an unfair dismissal claim where his employment was terminated one day after the end of his 6-month probationary period.  

In Brayley v Australian Customs Service (2003) the AIRC held that a 12 month probationary period was reasonable in the circumstances, because she was a customs officer with many skills to acquire. 

Policies

Lozina said it was essential for employers to have a code of conduct, which should include a provision along the lines of: ‘The employee agrees to abide by all employer’s policies and practices, guidelines and codes of conduct currently in place, any alterations made to them and any new ones introduced.’ 

Awards & Other Industrial Instruments 

Lozina said these instruments often included disciplinary procedures, dispute resolution processes and provision for union involvement (such as the right to be represented in disciplinary hearings) which needed to be followed in termination cases. 

Dismissal for serious misconduct

In these cases the employee can be terminated on notice. 

Lozina said serious misconduct is defined in Regulation 30CA of the Workplace Relations Act Regulations as including:

  1. Wilful, or deliberate, behaviour by an employee that is inconsistent with  the continuation of the contract of  employment; and

  2. Conduct that causes imminent and serious, risk to:

    (i)  the health, or safety, or a person; or
    (ii) the reputation, viability or profitability of the employer’s business.”

Examples of serious misconduct provided in the WRA Regulations (Regulation 30CA(2)) include theft, fraud or assault by the employee while in the course of employment, the employee being intoxicated at work, or the employee, “refusing to carry out a lawful or reasonable instruction that is consistent with the employee’s contract of employment”. 

Misconduct 

Lozina said other potential examples include: insubordination, abusive language, sleeping on the job, violence, obscenity, sexual harassment, or failure to observe safety rules. 

In the case of R C Barclay and Nylex Corporation Pty Ltd (2003), termination was of a night shift supervisor, sleeping on the job.  

‘The employee had undertaken to senior management that he would not sleep on the job, and destroyed a log sheet in order to conceal the allegation he had been asleep,’ Lozina said.

‘The employee was 60 years of age and had 25 years of service. The court found he had not given a fair go all round; he should have been warned if he slept at work, his employment would be at risk.’ 

Absenteeism 

Lozina said absenteeism was not a reason in itself for termination of employment. 

He gave the example of Travis Nigara v All Storage Systems (2003), in which a worker who failed to attend to work or notify his employer while suffering from depression.   

In this case a casual storeman was diagnosed with a depressive illness, receiving psychiatric treatment. The employee was having personal relationship difficulties during the same period. 

‘The worker was required to attend at Family Court proceedings,’ Lozina said. 

‘He was absent from work with the employer’s knowledge and consent for about 30 days between March and November 2002.   

‘In November the worker failed to attend work or call to advise his employer of the situation for five days. Employer called a meeting for following Monday and agreed not to sack the worker if he showed up for work the following Monday.       

‘The worker failed to attend work or call his employer and the employer dismissed him.’ 

Lozina said the court found the termination was harsh and unreasonable. 

‘The employer inferred the worker’s capacity was not the result of illness,’ he said. 

‘The worker should have “done more to provide the necessary evidence of his illness, so too should the firm have put itself on inquiry”. The employer did not attempt to contact the worker during the absence. 

‘The worker was awarded six months’ remuneration.’ 

Drunkenness or drug taking 

Lozina said serious misconduct is specifically defined to include “the employee being intoxicated at work” in section 30CA(2) of the WRA Regulations.   

Regulation 30CA(4) further defines intoxication as follows:

'An employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by or taken in accordance with the directions of a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duty or any duty that the employee may be called upon to perform.'  

He said in one case a salesman was dismissed for smoking marijuana in the car park after a work New Year’s Eve party.   

Two other employees sharing the joint with him were not dismissed.   

Lozina the salesman had been previously warned about smoking marijuana by a manager, he claimed the manager had 'taken a puff' at the same time. 

Lozina said other potential areas of misconduct were improper internet and email usage, incompetence, breach of duty of fidelity and criminal offences. 

Unfair dismissal claims

Lozina said changes can be expected to the federal unfair dismissal system once the Federal Government gets control of the Senate, but these changes might take a year to take effect.

Fairness 

Lozina said ‘fairness’ was a key element in the dismissal of an employee. Key definitions were:

‘Substantive fairness’ means that the reason for the dismissal must justify the dismissal.

‘Procedural fairness’ means that a dismissed employee must have been treated fairly.  It concerns the procedures leading up to and surrounding the dismissal. 

Unlawful Termination 

Lozina said matters for which it is illegal to dismiss an employee include: 

  • temporary absence from work because of illness or injury;

  • trade union membership or participation in trade union activities; >

  • non-membership of a trade union;

  • a representative of employees;

  • the filing of a complaint;

  • race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

  • refusing to negotiate in relation to an AWA;

  • absence from work during maternity leave or other parental leave.  

Remedies under WRA 

He said the remedies for wrongful dismissal under the Workplace Relations Act include:

  • Reinstatement of the employee either to the same position held before termination or another position.

  • Payment of monetary compensation to the employee. The maximum amount of compensation is six months.

     

Related 

Collection of writings on termination and redundancy

 

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