Conference Presentation Performance management seminar

1. Craig Pollard
CTMA Workplace Consulting
0412 587 577
Australian Society of Baking
Mid Year National Conference 2018
Performance and Conduct
Management

2. • The Fair Work Act 2009 defines an unfair dismissal as follows:
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small
Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
What Is Unfair Dismissal

3. In considering whether it is satisfied that a dismissal was harsh, unjust
or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal
related to the person's capacity or conduct (including its
effect on the safety and welfare of other employees);
and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to
respond to any reason related to the capacity or
conduct of the person; and
What Is An Unfair Dismissal

4. (d) any unreasonable refusal by the employer to allow the person
to have a support person present to assist at any discussions
relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the
person--whether the person had been warned about that
unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would
be likely to impact on the procedures followed in effecting the
dismissal; and
What Is An Unfair Dismissal

5. (g) the degree to which the absence of dedicated human resource
management specialists or expertise in the enterprise would be
likely to impact on the procedures followed in effecting the
dismissal; and
(h) any other matters that the FWC considers relevant.
• This last point could mean anything at all, including: the distance in time
between various warnings; the way the meeting was conducted; any history
of complaints made by or against the employee concerned; and the
investigation processes used
What Is An Unfair Dismissal

6. ▪ An Unlawful Dismissal can occur anytime after an employee
commences and is caused when you terminate an employee for a
reason prohibited by the Act.
▪ “Prohibited Reasons” include, accessing, or seeking to access a
“Workplace Right”, and Discriminatory reasons stipulated in either
the Fair Work Act, the Anti-Discrimination Act, or the Human Rights
and Equal Opportunity Act.
What Is An Unlawful Dismissal

7. • I DON’T CARE
• THE FEDERAL COURT DOESN’T CARE EITHER
• UNLAWFUL IS UNLAWFUL whether it happens on the first day, the
180th day, or the 10th year of employment.
• PLUS if you try to dress up the termination as being for “performance
reasons” then you need to be careful because the Federal Court is
awake to you…
But They Are In The “Minimum Employment
Period”…

8. • Note the following paragraph from a 2017 decision,
The respondent argued that the fact that it did not formally raise
performance issues with the applicant may be significant in an unfair
dismissal case, but said this is an adverse action case. That is so.
However, the failure to raise performance issues with the applicant
during the course of her employment does tend to undermine the
credibility of the allegations about her performance which were raised
for the first time after her dismissal.
• Ouch!
But They Are In The “Minimum Employment
Period”…

9. • When you meet with employees to discuss their performance you
must always follow the following process:
• Advise the Employee of the meeting in advance (at least 24 hours notice);
• Advise them at that time that they are able to bring a support person with
them and that the meeting is to discuss some performance concerns;
• At the meeting we always give detailed examples of our concerns;
• We always ask the employee to give a response as to why the
performance/conduct issue has arisen and what they see as the issue;
How Do You Avoid Unfair
Dismissals

10. • You always advise whether or not this response is reasonable or
unacceptable;
• You always follow up with a letter written after the meeting setting out the
detail of what was discussed and what the outcome is (first warning, final
warning, etc)
• You never “cross examine” employees during this process and we enable
them as much time as they may need to formulate responses and consider
our concerns.
How Do You Avoid
Unfair Dismissals

11. • All managers have the ability to make this process either very easy
and safe, or doomed to failure from the start.
• The following elements must be present before you can even have a
meeting with a staff member to discuss their performance/conduct;
• Specific examples of concern, e.g.
• the time and date of a customer complaint,
• the detail of what was said to whom, when it was said and who else was present at the
time,
• details of any performance concerns (burnt 50 loaves at 4.00am on Thursday the 28th of
June, Failed to perform closedown checklist on 30th of August)
• Dates when you have spoken to the employee on similar issues in the past
What Your Representative
Will Need

12. • This means that you must keep notes in your diary of discussions with
employees relating to conduct or performance.
• Every detail need not be recorded. For example the following would
be fine:
• 3.30pm – Spoke with Jenny re: Not completing close down checklist for last
night. She said she forgot, advised must complete every day.
OR
• 2.00pm – Spoke with Allen re: Arriving late for work without calling and
advising us. Told must advise if running late, not coming in.
What Your Representative
Will Need

13. • If a customer complaint is involved, please ensure you have the following:
• Customers name and contact details;
• Any correspondence the customer may have sent (emails etc);
• Write down your recollection of the event as soon as it has taken place and
do not wait until the end of the shift/week.
• If you speak to the customer get them to identify the staff member by
describing them in detail (the thin girl with black hair is not very helpful if that
is the majority of the retail staff who happen to hail from South America).
This way we can avoid the defence of “it wasn’t me, Jane was on that shift,
maybe it was her”.
What Your Representative
Will Need

14. • You must keep any evidence you may need later on (i.e. checklists,
photos, emails, text messages etc.). It is preferable to print them out,
but we know this can become unwieldy so just don’t delete anything!
• Your lower level managers (if you have any) must advise you of when
they have these discussions so that a decision can be made as to
whether a more formal discussion is necessary. This will almost
certainly be the case if you have had more than one informal “chat”
in the past with the person.
What Your Representative
Will Need

15. • All personnel files should contain the following,
• Copy of job advertisement;
• Copy of Application and Resume;
• Copy of Interview Notes;
• Copy of Contract of employment/letter of offer;
• Copy of Position Description
• Copies of any warnings/records of meetings
• Copies of doctors certificates/Stat Decs for absences;
• Letter of termination
What Records Should Be Kept?