Apr 29, 2015

Termination IS possible, despite what you may think.

If I’ve heard it once in the training room, I’ve heard it a dozen times: “You just can’t get rid of anyone without them taking you to court.” This is particularly true when students are talking about performance management issues and they feel that despite continued poor performance, they’re saddled with the “lame duck” employee.

It’s really fairly simple and the court is pretty clear. The court/tribunal wants you to have acted fairly, consistently and respectfully to your employee. It takes into consideration two criteria:

• Was the termination for a substantive issue? (Such as redundancy – where the job is no longer required; or poor performance, or serious and willful misconduct, such as threatening harm or abusive behaviour)
• And was due, in-house process followed? (The in-house process being based on the legal framework of Fair Work practice and other legislation)

So with every situation that arises, these two criteria are significant because it isn’t only the particular issue that’s at stake, but also what steps are followed. So in the event of a termination for poor performance, where a data-input employee repeatedly produces inaccurate work, the court would agree that this is a truly substantive issue i.e. the employer has grounds for dismissal.

BUT…

The court would then question what processes had been followed to help the employee rectify their performance. They would look at what company procedures exist to govern these types of situations. So not only what the process is, but whether it is followed. They would also look for evidence that the employer counselled the employee about the poor performance and went through methods to help them become more accurate. Records/notes of these improvement sessions would provide proof, as well as giving the court an indication of the severity of the situation, and the number of times the employer followed up on the problem. After 3-4 attempts, with adequate time between meetings to allow the employee the opportunity to improve, it would be reasonable to assume that the employee is unable to deliver the desired performance. Having met both substantive and procedural requirements, termination would be fair.

In my experience, employers usually terminate employees for the good reason; unfortunately, how they go about doing it, needs more attention. The Human Resources function in most organisations provides support and direction in this regard, and training of all staff would create an open and clear understanding of workplace expectations and responsibilities.

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