Where employers struggle with Fair Work unfair dismissal claims

By the time we get involved with Fair Work Commission unfair dismissal claims with new clients, and despite some frivolous claims, a couple of small or big mistakes have usually been made. Sometimes it was the decision to dismiss, but far more often it’s how the decision was made, recorded or communicated – the process. The FWC is BIG on process. Frustrated employers sometimes complain that they can’t “sack” people, and, although we don’t like the emotion and power commonly associated with “sacking”, we absolutely disagree – employers can dismiss employees, and in some cases have no option. The Fair Work Act is very clear on that, and FWC judgements commonly reinforce the rights & obligations of employers both in the workplace, and in response to actions taken by employees out of it. So it’s not about being powerless to do what needs to be done, it’s about being transparent, fair & structured in what gets done and how it gets done.

Things you can do now

For small and medium sized businesses, the problem is having the time and focus to develop and manage a process that works with employees on monitoring, supporting and giving feedback on performance and behaviour. Here are some simple things that can be done to help from the start and will help improve productivity, morale and your reputation:

• If someone is performing or behaving in a way that is unacceptable, let them know early on before it becomes a habit, or that they form a belief that misbehaviour or under-performance is OK. Most of these conversations won’t be formal warnings, and many will include positive feedback too. Get a commitment to improvement, and be prepared to help (for example training, information or support) if that was part of the agreed way forward. Make a note of these conversations so you have a record of being fair and clear. Don’t avoid the meeting or avoid commitments, no matter how stressful it might feel. (We can even do it for you is you prefer.)
• If someone repeats unacceptable behaviours or performances, or has a single serious episode, there comes a time where you’ll need to get formal. There is no 3-warning process necessary, but there is a need for formal warnings, and a right of response, to be given. Employees need to know that the meeting may affect the viability of their ongoing employment and have time to arrange for a support person for that meeting – 24 hours (min) – 48 hours (max) is usually reasonable. This is not a dismissal. Rather, it is a part of the process of being very clear, transparent and fair in what is expected and accepted. If the employee provides information that changes the position you have, you need to take it into account too, but don’t walk away from your reasonable expectations and needs.
• If unacceptable performances or behaviours continue despite the clarity and support you offered, or when a single offense is extremely serious (serious misconduct), you will need to convene a meeting where an employee is required to show cause why their employment should not be terminated. Give them the same notice period as for the warning meeting, and the same opportunity to arrange for a support person. It is important here that you do not make a decision before this meeting – rather, your decision is subject to information provided in the meeting. When making your decision after it, you cannot be expected to take things into account that couldn’t reasonably have been known by you or were held back from you, and that means that employees who have nothing to say might well also have nothing to complain about if the decision doesn’t go their way. Employee non-cooperation and dishonesty in this meeting are also reasons for supporting a case for dismissal.
• Do not rely on common sense, intuition, gut feelings, assumptions, gossip or anything else that isn’t supported by objective evidence.

For larger businesses, the expectations of the FWC are higher. On top of the things listed above:

• Your processes need to be thoroughly designed, documented and followed, giving employees every chance of complying with your reasonable needs of them. The FWC is not very flexible around that.
• It’s not just an “HR Department” thing – managers & supervisors (at least) need to be trained in your values and process so that they do not become a contributing factor in either the behaviour or in mishandling their response to it. Proactivity, clarity and professionalism are key. This doesn’t have to be difficult or expensive – basic supervisory management training is not time consuming or complex, and can itself become a replicable & reliable process – and, in the interests of performance, culture & well-being, why wouldn’t you anyway? We have developed very simple delegation & management processes that help managers at every level with basic delegation and performance management processes, and other consultancies may have some reasonably good ones too – just be careful they are pragmatically-designed, easily followed & practical in everyday work situations.
• Knowing that you can call on your solicitors to handle problems as they arise is not a fail-safe – they’ll do what they can but they can’t undo poor management or process.

No matter what size your business, make sure your instructions, words and responses throughout this process, and the normal management delegation, communication & response processes that are used every day, are objectively fair, reasonable and appropriate. When the Commissioner makes a judgement, although it might be emotionally-aware, it will be compliance, fairness & process-based. If you get this stuff right, you are less likely to have problems successfully defending your decisions, AND it is less likely you will need to, which surely is the point.