Jun 08, 2016

Australia enjoys a very robust industrial relations system and it cannot be said that that people are indifferent to its existence. It is the subject of much debate by management, employees and the unions. I’d like to focus on the disciplinary aspect and what happens after repeated counselling of a poor performing employee. There seems to be some hesitance/reluctance to take the next step of disciplinary action, perhaps due to concerns about accusations of an unfair labour practice. Whatever the reasons, here are some discipline fundamentals:

1. When Counselling doesn’t help
2. Warnings
3. Code of Conduct

1. When counselling doesn't help

Counselling is a formal discussion (as opposed to a casual “chat”) with an employee about poor performance. Notes should be kept about the incident, and what standards are expected. A timeframe is normally provided to allow for the improvement to take place and any support provided to help the employee improve. However, if repeated sessions fail, (usually 3) then it would seem that counselling is ineffective, and the employee needs to be notified that disciplinary action will be commenced. This becomes crucial if the manager believes that the continued poor performance may ultimately result in dismissal.

2. Warnings

The Fair Work Ombudsman website gives clear guidelines but here are some essentials:

• Written notes will be taken and placed on the employee’s file. Again, offers of assistance and guidance will be made in order to achieve the agreed standards. Also, a prescribed time will be put in place to see improvement.
• The employee has access to all notes and written records and this will only be put on their personal file once they’ve had an opportunity to respond to the record and added some comments of their own.
• Employees are entitled to representation, from a union official or colleague. They are not allowed to bring in lawyers and advisors from outside of the organisation because it is still an internal matter.
• If, after the prescribed time, there is still no improvement, the employer can issue a final written warning, and explain that the continued poor performance could result in dismissal.

3. Code of Conduct

All organisations, irrespective of size, should have a clearly articulated Code of Practice, so that everyone knows what is expected of them, and the consequences, when expectations are not met. Additionally, all staff need to understand their rights and obligations under the law, and what procedures need to be followed to act in a fair and reasonable manner. The Fair Work Commission considers it extremely important that employees are knowledgeable about their rights and that the Code is consistently and fairly applied.

For more information, consult:

1. http://www.industrialrelations.nsw.gov.au/oirwww/Employment_info/Managing_employees.page
2. The Fair Work Online website [Fair Work Ombudsman] has a Best Practice Guide to managing underperformance

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