A lot of our role as managers of people is getting the documentation and communication right.  This can sometimes seem like an exercise in form filling.  But it can also be vitally important in ensuring compliance within the business.  This week’s HR Highlight will focus on the outcome of a couple of cases that confirm what we know is important in people management…fairness and procedure. 

By Elisha Radwanowski

Dismissal deemed unfair despite very valid reasons

A recent case has again confirmed the tired old scenario of businesses doing the right thing, for the right reasons, the wrong way – and getting in trouble for it.  In this case the business dismissed an employee on the basis of serious and genuine performance and policy breaches, including downloading elicit adult content.

The Commission, when commenting on the case, confirmed that the business clearly had valid reasons for dismissing the employee, but went on to explain that due to the lack of procedural fairness in the process the dismissal was unfair.

What the business in this case had failed to do, was communicate to the employee the performance and policy issues, the businesses expectations and provide for an opportunity for the employee to meet those expectations.  Further the performance meeting was conducted in such a way that the employee was not given a real opportunity to have his side heard, nor to affect the outcome of the businesses decision making process.

unfair dismissal

Despite the very valid reasons for dismissal, the Commission ruled that this dismissal was unfair by way of the process itself.

Getting it right at your workplace

What the business should have done was:

  • Warn ASAP – formally (in writing or at a documented face to face meeting) raise the performance and policy breach issues as soon as they became apparent, communicating to the employee what was expected and what was likely to happen if the expectations were not met
  • Manage Compliance – review performance compliance
  • Meet Formally – if the performance and breach situation continues call a Performance Management Meeting, letting the employee know what the topic will be and providing enough notice that the employee can prepare and/or have a support person attend the meeting as a witness
  • Gather All Facts – approach the meeting with a view to outlining the issue, hearing the employees side and then moving into decision making – make no decisions and write no letters until after the meeting, when all the facts and explanations are known
  • Decide on Response – understanding all the facts make the business decision and document reasons for this selection, regardless of the outcome
  • Communicate Response – reflect the decision to the employee in the form of a letter

These procedural steps are more than form filling, they are important elements in ensuring a functional workforce, in correcting small issues before they become unmanageable mountainous issues, and protecting the business from easily avoided cases of “right thing, wrong way”.

Here to Help

ACAPMA Members are reminded that they can seek advice and support from the Workplace Relations Professionals on procedural fairness, performance management and unfair dismissal by calling 1300 160 270.

HR Highlights are things to consider, implement and watch out for in your business.  They are provided as general advice and you should seek further advice on your specific situation by calling 1300 160 270 and speaking to on the of the ACAPMA Workplace Relations Professionals – it’s free for members.  ACAPMA Membership is affordable at only $770 per year for a single site, which represents great value with sites gaining employment advice, support and representation as well as a raft of other benefits and discounts.  Learn more about ACAPMA Membership on our new site – coming soon!..

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