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Biggest mistakes that will BLOAT your chances of an Unfair Dismissal


Pizza is our favourite food here at CMSolutions and usually when we starting eating it, we want to eat until we are going to bust. So in honour of the pitfall of eating too much pizza, let's look at the common pitfalls of performance management and termination.


Performance management refers to the ongoing process of setting standards for performance, as well as reviewing and managing performance. Termination on the other hand is when the employment relationship has ended. We will focus on termination at the iniative of the employer today.


The most common mistakes that we see are:


  • Not inducting staff into policies and procedures?


When staff are not educated on the organisations policies and procedures they are often ignorant of the expectations placed upon them. This can result in underperformance due to confusion or complete breach of policy.


The other issue we face when staff are not educated on policies is that it can be difficult to performance manage the employee, even after serious breaches in behaviour. This has been reiterated by the Fair Work Commission or State Industrial Relations Commission on a number of occasions and is particularly important when considering social media and workplace bullying.


  • Avoiding the issues


This common error creates issues for both employee and employer. Often a Manager will not speak to an employee the first time there is a problem and thus the issue continues. Often this results in the employee feeling unjustly criticised when the issue is finally raised with them. Meanwhile the Manager is worried about bringing the issue to the employees' attention as it has been so long and therefore continues to ignore the underperformance.


  • No Position Description


A Position Description (PD) is an important tool to identify the key responsibilities of employees. A PD will provide an employer with evidence that the employee was aware of their role and will also assist in recruiting and selecting the best candidates for the position.


  • Not keeping accurate records


When an employer does not keep records of previous warnings or conversations with an employee, it becomes very difficult to prove that the employee has in fact been given a chance to improve their behaviour and thus difficult to proceed to the termination process.


  • Not giving the employee enough information to respond


When dealing with a termination, you must provide the employee with the opportunity to respond. This means that you need to be able to provide exact dates, time and what occurred so that the employee can respond. If you do not provide specific details the employee will be unable to discern what the allegation relates to thus cannot give a meaningful response.


  • Not allowing the employee to bring a support person


It is also a requirement for the employer to not unreasonably deny the employee to bring a support person. This does not mean you have to ask the employee to bring a support person, however it is best practice to do this. A support person is there as an emtional support and can be asked to leave if aggressive or disruptive.


  • Preparing a termination letter before a show cause meeting


As you are required to give your employee an opportunity to respond if you are considering termination, you must not make a decision on the outcome of termination until after the employee has been able to respond. It has been found on multiple occasions that a pre-prepared termination letter sends a clear signal that the employer did not genuinely consider the employees response.


  • Relying on hearsay


Hearsay is statements which have not been directly obtained from the person who has witnessed the behaviour. For example if Ben was to report that Stacey had told him that Chris was swearing at a client, Ben's statement would be hearsay. Hearsay is unreliable and the original source of the information should be asked to make a statement to ensure that your facts are accurate.


  • Discussing unrelated matters


Performance meetings and termination meetings can often be thrown off track because of unrelated issues that arise. It is suggested that you ask employees to address any other concerns in a different forum. You will have to of course be sure that the matters are unrelated. Probing questions are very useful to understand if the matter is or is not related.


  • Becoming personally involved


Performance management and terminations are hard. It can often feel personal when the employee responds defensively or aggressively. It is best however to try and maintain impartial during these processes. It can be useful to try and think from another person's perspective as if your matters where to process to the Commission they would not have the same background understanding as yourself.


If you are thinking or in the process of commencing performance reviews and you need some assistance  please contact our friendly Employment Relations Advisors on 07 3852 5177 or 1300 007 110.

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