An employee who posted on LinkedIn “What the ???? How many more surprises does [business] have? To[o] many good people leaving” following the departure of a colleague, sent threatening text messages to the manager who asked him to remove the post and was neglectful in his duties was still found to have been unfairly dismissed because of the conduct of the performance management meeting. The importance of understanding and complying with procedural fairness is the focus of this weeks HR Highlight.
“It is not enough to have a valid reason for termination, there must also be a valid process” explains ACAPMAs Elisha Radwanowski.
This critical concept of performance management was clearly on show in a recent case.
The employee, following the LinkedIn posting of a colleagues departure from the business commented “What the ??? How many more surprises does [business] have? To[o] many good people leaving”.
The employee’s manager asked the employee to take down or edit the comment, explaining that it was unprofessional and disparaging to the business. The employee initially was aggressive and refused to do so, claiming there was no such implication to his comment, but later acquiesced.
Soon after this incident the manager received two anonymous threatening text messages from the employee including implying that the employee was having an affair with the managers wife (who was also an employee) and that “I’ll be with [wife] soon xxx”. The manager and the wife were “”unnerved” by the texts and felt “stalked and harassed”.
At the time of the texts the employee also sent an email to all of the businesses partners falsely claiming that the business had partnered with his personal demolition company as a preferred contractor.
An investigator set to watch the employee for two days following the text messages noted that the employee did minimal work during work time, spending the time at personal hotels and shopping, and when attending sites for work in his role as an OHS Inspector the employee did not even enter the sites, merely marking them as compliant from outside of the site or from his vehicle.
A performance management meeting was called to discuss the concerns but resulted in summary dismissal
“What is important in this case is that the employee was dismissed before he was given a chance to respond to the breaches. The Commissioner agreed that there was a valid reason for termination; several in fact including misconduct in the post comment, misconduct and bullying and harassment in the text messages and dereliction of duty in the performance of work tasks. However the Commissioner found that the lack of opportunity for the employee to respond to the breaches and have those responses heard and considered before a final decision was made, led to the dismissal being unfair” added Elisha.
“Even when the standard business response is instant or summary dismissal, the business needs to ensure that it allows the employee to comment in an effort to persuade the business to take a course of action other than the standard response, without this important procedural fairness step, even clear cut misconduct cases like this one, where the reason for termination is clearly valid, will end in unfair dismissal as a finding” explains Elisha.
Having found that the dismissal was unfair the Commissioner turned to making the final judgement for remedy. The Commissioner determined that had the business followed a more reasonable procedure the employee would likely have only remained employed for a maximum of another week, and thus awarded him 1 weeks pay as a remedy for his unfair dismissal.
Want to know more about performance management?
Join ACAPMAs Elisha Radwanowski for a deep dive into the tips, traps and templates needed to appropriately and compliantly navigate those situations where a staff member is not performing up to standard. Building on the extensive resources and guidance ACAPMA delivers for members on Performance Management, next weeks Employment Masterclass Workshop is specifically geared for Site Managers.
This practical workshop empowers Site Managers with the information and resources needed to ensure they are supporting the businesses performance management approach. This ACAPMA Workshop is free for ACAPMA Members. The first of the ACAPMA Employment Masterclass Workshops for the year is aimed at demystifying and normalising performance management for site managers.
Open to all interested parties the Workshop is FREE for ACAPMA Members, while a cost of $33 inc GST per person for non-Members will apply.
ACAPMA Workshop: Performance Management for Site Managers
Date: Friday 11 March 2022
Time 13:00 AEDT (Sydney Time)
Duration: 2 hours
Cost: FREE for ACAPMA Members, $33 inc GST per person for non-Members
Limit per Organisation: NONE
Register now via; https://us02web.zoom.us/webinar/register/WN_OkeGXQw8Q36QgddAO405Qg
More on Performance Management from ACAPMA
Check out more from ACAPMA on the area of Performance Management here;
Here to Help
HR Highlights are things to consider, implement and watch out for in your business. They are provided as general information for you to consider and do not constitute advice. You should seek further advice on your situation by contacting your legal advisor. ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment professionals via firstname.lastname@example.org , it is free for members. ACAPMA Membership delivers this and more benefits, see; https://acapma.com.au/membership/ for more information.
Elisha Radwanowski BCom(HRM&IR)