As refreshing as the spring may be, keeping your employees refreshed and maintaining a vibrant workplace is not always as easy as it looks. For one, as soon as spring kicks in, the weather starts to bring out the color in most things around us and the environment tend to turn nice and welcoming. As a result, staying inside the work environment can get stuffy and your employees can feel confined, to say the least. Surfing looks more inviting and so do days on the beach.
It is normal to feel a burst of excitement when the spring kicks in, however, it is not always easy to maintain the excitement and channel the energy into more productivity. Although spring can heighten vitality and energy, it can also result in restlessness and disorientation.
Also, the change in season often results in a change in time. As a result, routine activities like eating, sleeping, and exercise might have to change. Unfortunately, most employees find it difficult to adapt to these changes and it often affects their behavior and mood. Luckily in Queensland we don’t have a change in the clocks but as close to the boarder as we are on the Gold Coast we often need to move between two time zones with our clients.
Behavioral changes, either positively or negatively impact workplace productivity. Whichever way it would, it is best to be prepared for these changes than to be caught unawares. To keep the workplace refreshing during spring, it is important to avoid distractions that prevent work from getting accomplished.
How you can get your team healthy for spring
- Make Your Schedule Flexible: Nothing says “killjoy” faster during the spring than a rigid schedule. The inability to feel the warmth outside and spend time with those you care about can play down on workplace productivity. On one hand, you can decide to let in a bit of sunlight at the workplace, however, flexible scheduling has a more psychological impact on employee productivity. This makes it possible for employees to strike a balance between their work life and their life outside work.
- Make the schedule interesting: since it is a fact that an average employee would rather spend time outside work than stay within the walls of an office, your best chance against negative behavioral changes is to make your employee schedule interesting so much that they would be motivated to work and not lazy around. To do this, only delegate tasks that employees would be interested in carrying out.
- Redecorate the workplace: if employees can spend all day outside the office, let them experience it in the office as much as they can. To redecorate the office, open the blinds and window to let in sunlight, bring in live plants or flowers, and encourage a little bit of spring cleaning. The feeling of freshness goes a long way in encouraging positivity in the workplace.
- Make their work challenging: one of the best ways to boost employee productivity and personal development is to make their task challenging. Such challenge encourages them to break their record and stretch themselves to their limit. To effectively implement this, create opportunities for personal development and encourage them to set new goals.
- Create a reward system: although the idea is for employees to spend more hours in the office during spring, you can increase workplace productivity with a reward system that guarantees time off from the office. For example, a reward system like vacation or time off will naturally encourage an employee to put in more effort in the workplace. Such program, although is a way of thanking them for a job well done, is also a way of making sure that they do not miss out entirely on the spring season.
In all, maintain a healthy workplace and focused employee can be difficult during the spring, however, you can keep your workforce engaged and your workplace productivity with the tips above.
Related Tag: HR Workshops And Support
Employee retention is about keeping hold of your best employees so that the employees have the feeling: “able to go but happy to stay“. Employee retention measures can be applied to a rational and normative level. Rational commitment is based on the costs associated with leaving the company. But, when work is done mainly for rewards and not for the sake of the action itself; the measure misses its original purpose, and the employee loses his enthusiasm at work.
An ideal employee experience during the entire employee journey sounds simple, but organizations that succeed in motivating employees and allowing them to do the right things are scarce. The Gallup Engagement Index – a study on job quality shows that out of every 100 workers in a company, only 15 people have an effective commitment – a high emotional attachment and voluntarily commit themselves beyond measure to their employer. They identify with their department and with the products of their company. Retention management requires structural work to improve the employee experience based on a well-structured employee journey.
Selective employee retention: No one likes to throw money out the window
We must admit that there is always a certain level of turnover, whether voluntary and avoidable dissatisfaction of the employee. Employee turnover, when it has a moderate level, can have a positive impact: it is then synonymous with new ideas and approaches.
Some time ago, an article appeared about staff turnover, “why Amazon offers employees up to $5,000 to leave the organization”. It can also be beneficial to let people leave via natural turnover. However, high turnover is associated with the necessary costs. It also seizes the other employees who have to train new colleagues and to fill unfilled job openings.
Keep your finger on the pulse:
It is essential for the company to put in place a strategy to retain their best employees, who represent a real competitive advantage. And accordingly, the measures should target the right employees. Experts recommend answering these questions:
- Which employees are hard to replace within the industry?
- Which employees hold key strategic positions?
- What are the causes of the turnover within your organization?
If you are not aware of this, we recommend conducting the exit interview. The exit interview can provide useful information when it comes to the reasons and cause of your staff turnover.
Some days and projects are more challenging than others. Talk to employees regularly and ask them how they are doing;
- Are the employment conditions not aligned with the current time and market?
- Is the workload too high?
- Is the atmosphere not safe?
- Are there too few career opportunities?
Problems can also arise due to an uncompetitive, unequal or unfair payment system. And, possible actions may include revision of wage levels based on market research and involvement of workers in the development and implementation of a performance appraisal system and a payroll system based on results.
Define the long-term vision:
New employees without proper training may experience an “adaptation crisis” when they start work.
Discuss the future perspectives of employees.
Help them set and achieve goals.
Identify whether employees are interested in this. Provide regular, informative and understandable feedback. And,
Find out what the training options are.
It is necessary to develop and launch training programs and training series that allow you to speed up for new employees the process of acquiring and learning the basic skills; skills and knowledge necessary for the successful start of their work activities.
In the past, companies mainly invested in younger employees, who then remained with their entire working life in the same company. Nowadays it’s no longer like that. Today, older employees are often more loyal. No doubt – it is also necessary to invest in them – depending on their individual qualification needs.
Grab your FREE fact sheet on Inductions
Kindness in the workplace is contagious; it contributes to a culture of collaboration. Happy, optimistic people look more generous and perform better at work. That’s why many global companies realize that just as they provide their offices with the latest technology, they also need to provide a proactive work environment tailored to the emotional needs of their staffs if they hope to improve efficiency levels. As a result, the days of office environments under high pressure are coming to an end, as companies realize that these stress factors are less motivating than previously thought.
When work is soulless, we are only half human
It is a strange world. We spend more time at work than with our friends and family. Work eats away at our lives, but we see the work as separate from life. Sometimes we do not want to take the job seriously, because we as a person are not taken seriously at the workplace. A positive atmosphere in the office encourages collaboration between employees; colleagues are more responsive and easily pass on new information to each other. On the contrary, when unfair competitive behavior dominates people suffer. People need other people to do their job. Suppose you would come to me because you need some critical information. Now in an extremely competitive environment, I would not be much quicker or only partially give that information. That way you cannot do your job well, and therefore you cannot perform to the full.
So, how can we connect with others? We can start by allowing a little air for ourselves and others, some space for kindness. Above and beyond, Social Responsibility has become part of the corporate culture of many companies; employees can and should actively contribute as well.
Employee’s single-combat mentality is awful for the company
Competition is stimulating, but too much competition among colleagues can do the opposite. With too much competition, the situation can topple and, employees enter into an unhealthy rivalry. Personal and hurtful attacks only damage the relationship with each other. Not only the individual employee but also the entire company suffers in an extremely competitive workplace. In addition to the possibly diminishing performance of some employees, knowledge is often kept secret among colleagues; they work in private and do not share information. Some rivalries are getting so bad that employees are looking for work elsewhere. To prevent this from happening that a superior third party would have to ask the competitors to talk.
Do not condemn or threaten your employees with consequences; reward instead
Managers sometimes pretend that kindness is an unnecessary luxury item, for which they have no time. The management team is accountable to create positive and friendly working environments that demonstrably boost productivity. Engaging as a team, working together can be a meaningful experience. Staff members should not have problems requesting help, requesting assignments and discussing management issues. Managers who demonstrate empathy and who act as mentors for their teams help improve loyalty by establishing positive working relationships. Do you know how much you benefit from appreciating somebody’s work? It forges stronger relationships with your employees, or your vendors or co-working companies.
Showing appreciation to the people that you work with is critical, so let’s not overlook benefit from appreciating. Give your employees the feeling that they can knock on your door at any time and come to you with their problems. It would also be unrealistic to assume that every working day is always only peace, joy, and pancakes. Once a bad mood has spread, it’s not so easy to come to terms with it. But somebody always has to take the first step. Why not you?
Happy June 1st to everyone.
Build Your Dream Workplace
Related Tag: HR Support Gold Coast
HR Consultancy Services Gold Coast
2019 Look At The Trend Of Political Opinion In The Workplace
Politics stands as one of the most sensitive and widely debated topics all over the world. From simple dinner among families to a business meeting among friends, politics has gained prominence among various social circles and the intensity generated from its discussion leaves many licking the wound of the aftermath. Or is it otherwise? Discussing politics in the workplace have generated a lot of controversies over the course of time. While it is evident that politics affects the atmosphere at the workplace, the question is how and to what extent?
The Anti-Discrimination Act 1991 makes it unlawful to discriminate against a person because of their political belief or activity. The Act does not define political belief or activity, but decided cases indicate that it refers to beliefs or activities relating to the policies, structure, composition, roles, obligations, purposes or activities of government. Government includes Commonwealth, state and local governments.
A council employee in a managerial position did not have his contract renewed because of his involvement with an environmental activist group which had publicly criticised the council’s policies.
At a federal election, a woman who works as a dental technician handed out how to vote cards for a local candidate. Her boss saw her at the polling booth and told her that she should look for another job, as he didn’t want someone of that political persuasion working for him.
A group of people wanted to hire a community hall to conduct a public meeting to protest about a particular government policy. They were refused hire of the hall because the manager of the hall disagreed with their views.
For an employer to understand how to manage political opinions in the workplace and how much it affects the employee relation and functionality, they need to know how their employees feel about holding political talk in their workplace and identify when the discussion is getting too much and when it sets off the wrong impression. Don’t be afraid to hear a conversation, take part BUT also know when things need to stop.
Fundamentally, employers needs to recognise that under Australian Workplace Legislation, their employees have a right to offer their opinion about political matters anywhere, even in the workplace. What then becomes the concern for an employer is how to manage the discussions and prevent it from becoming a full-blown war among employees that belong to different factions. Hence they can establish a limit.
Employers should draw the curtain on political opinions in the workplace when any of these happen:
Whenever employees allow their political opinion to get in the way of their effectiveness in the workplace, it often leads to disunity, and employees often find it hard to corporate with one another. Whenever an employer identifies the lack of harmony between the employees, it is a sign to draw a curtain on the political discussion in the workplace.
- Ineffectiveness and distraction
Whether your employees find common ground or not on political opinion, it distracts them from the task that they are supposed to be focused on and renders them ineffective. To maintain focus in the workplace, an employer needs to cut down political discussions as much as they can.
This is usually described as the last straw. A physical brawl between employees is the green light for an employer to put a stop to political opinions in the workplace. Political opinions in the workplace can quickly spiral out of control and result in accusations and confrontations between employees. Not to mention crossing the line for Serious or Gross Misconduct and the consequences of that.
Although an employer should allow a free flow of political opinion in the workplace, the negative effect of such discussion often outweighs the positive effect and it disrupts. To ensure that employees understand not to go overboard, an employer should implement the following when it gets out of hand:
- Establish a policy concerning political opinion
The employer should seek to clarify which political opinion is acceptable in the workplace and put it into writing. The policy should cover which activities, discussion, and political clothing material is prohibited in the workplace. The employer should be clear on the punishment for harassment, threat, and derogatory comments aimed at other employees. Make sure there is an open door policy and a clear pathway for communication.
- Work out a complaint procedure
Even with the utmost care, an employer tends to miss some acts of aggression to comes with political opinions in the workplace. To combat this, an employer should implement a legal complaint procedure through which employees can report acts of political harassment or violence in the workplace. Ideally as an employer you will already have policies and procedures in place for most things so check them over and tighten them up. If you are not sure seek the advice of an Employment Relations consultant such as Fresh HR Insights
- Follow up on every complaint
The decision to discipline bias political opinion in the workplace should be reinforced by an employer with immediate action. Just remember to check the facts, do an investigation, don’t rely on hearsay or take one person word over another. You must ensure at all times you have a well founded basis for any disciplinary action and you also need to ensure procedural fairness. Hot headed environments are no time for you to go off the correct ways to deal with workplace complaints. Always, always get the paper trail too – if it is not written down, it didn’t happen.
Political opinions in the workplace can be as bad as a rival sports team that can pollute the work atmosphere if it is not adequately contained. Although HR should permit such discussion, they should be fast to curtail any excesses and prevent the situation from deteriorating.
If you are unsure you can consult with the team at Fresh HR Insights – Book in a session with us HERE
Can an employer fire or discriminate against an employee based on political beliefs?
The Fair Work Act 2009 (Cth) (Act) prohibits employers from discriminating against employees because of their political opinion. However, the Act also provides that where it is found that the action was taken because of the inherent requirements of the particular position concerned, then it will not be a breach of the applicable unlawful discrimination provisions, such as political opinion. An employer is allowed to deem an employee’s views as being inappropriate if they’re “unauthorised and inconsistent” with the employee’s role or the organisation’s values. This is particularly the case where the public can scrutinise an employee’s comments and then form an adverse impression of the organisation that the employee works at. Read more here
I don’t want to die in my office; I’m gonna die on the beaches. – Jack Ma
That’s so sweet of Jack Ma, but the reality stands harsh. To work at web giant Alibaba, you must work at least 12 hours a day, six days a week. Jack Ma argues for a 72-hour working week. That is what the billionaire expects from his employees.
We are human, not resources
Anybody running any company must realize that the most valuable asset is people. Too often companies seem to put their shareholders first, and then they put their customers second, and their staff last. That makes the workplace full of confused people because they struggle to bring their best selves forward, but it doesn’t have to be this way. There is a better way.
Investing in employee experience advances organizational effectiveness and profitability. It’s critical that the leader realizes it’s not just the people at the top, the switchboard operator, or the person cleaning the floors, or all these people are as important as the people at the top, and often, they’re the most important people. They’re out there doing the hard work, and they’re the people that are in touch with the customers. Having a plan for employee development is essential to ensure the performance and productivity of the organizations and the departments.
Online HR platforms vs. bringing the H back into Human Resource management
Everything around us is evolving with the dynamics of digitalization and globalization. We must integrate data and technology into our game today, but don’t forget, human touch has a dramatic impact on administration, in improving confidence and creating bonds. Human Resource is such a broad topic, so not everyone is supposed to understand everything, but we’re expected to have an opinion. When you’re an HR manager, on one side you have the employee population, on other side you have the management, and anyhow we have to stay right in the heart and balance different agendas and expectations all across.
We are entering a new age of automation, unlike anything that’s come before. Now it’s a time of uncertainty and change. There’s a clear progression in terms of what humans did for a living for the longest time; humans shifted into service jobs, and then in human history, the information age happened. The world of work is changing. Suddenly the rules were different; our jobs are now being taken over by machines much faster than they were in the past. We communicate with friends and colleagues often by devices rather than sitting with them talking face-to-face. Tablet and smartphone adoption is growing by 50% every year. We’re no longer governed by the nine-to-five, we’re choosing where when and how we work. That’s why we see hundreds of companies and all types of businesses use the latest evolution of online HR platforms all over the world. Some systems are remarkably flexible and cater to all sizes of companies. They can be in a single location, or they can be in locations around the city, country or even globe. You can access from anywhere you have an internet connection whether that be in the office, at home, at a hotel somewhere else that allows you to get at the data and action whatever things you need.
There’s a lot of discussion going on right now around which should be the future role of HR and we are required to understand how the businesses are running and what the human associations of that are. We talk so much about consolidation of sourcing digitalization, and that’s all fine. Successful companies inside they mind their employee experience and externally they care about their customer experience, but the net is they are focused on people first.
I for one stand behind keeping the “Human’ in Human Resource management. I understand the need for HR Platforms and do offer one myself BUT you can never take away the real human approach and the intrinsic consequence of feeling valued to your employees. To prove my point take the Hawthorne Studies – Well-lit lighting increased productivity, as did a few other variables, such as having a clean workstation, allowing employees to build and work in teams, and having regular breaks. While these were the direct findings from the Hawthorne study, none of them were groundbreaking.
What the researchers in the original studies found was that almost any change to the experimental conditions led to increases in productivity. The results were surprising and the researchers concluded at the time that workers were actually responding to the increased attention from their supervisors. Researchers suggested that productivity increased due to attention and not because of changes in the experimental variables. Landsberger defined the Hawthorne effect as a short-term improvement in performance caused by observing workers.
Unfair dismissal does not play well on a company’s finances and environment. It could potentially drain your time, cost you your reputation, and ultimately affect your profit if you end up having to pay out an employee.
The best bet you have as an employer is taking advice at a very early stage. There are few ways to reduce the success rate of a successful unfair dismissal claim by an aggrieved employee. Also, in the case of a successful claim, there are few ways to minimize the risk that you are going to be facing as an employer.
The first of these ways is through observance of all the legal processes and obligation as an employer. The Fair Work Act guides the dismissal of an employee – as a small business you can follow the Small Business Fair Dismissal Code.
A break down of the code for dismissal, other than summary dismissal is:
The small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
As an employer, and taking on board the above, when an employee is not performing up to expectation, the first thing to do is have a discussion with them and let them know that the performance or conduct is not acceptable. This can first be done as a counselling session. If the performance or conduct does not improve then you can have a formal disciplinary meeting and dependent on the responses a warning can be issued. The warning should contain details about the current employee practice and what is expected of such an employee.
The warning should succinctly address all underlying behaviors and recommend improvement. You can also proceed to produce a Performance Improvement Plan (PIP) which sets out everything clearly and the time-frames as well as acting as a framework for regular communication. When this is done, you must give that employee time to respond positively.
In the case of fraud, theft or bribery, an employer does not need to provide any warning and can (dependent on each individual circumstances) proceed to summary dismissal.
If you are faced with an unfair dismissal claim, you will have a meeting set up with conciliation meeting. Conciliation is a voluntary process to help an employer and employee resolve an unfair dismissal dispute. It is an informal method of resolving the claim that is generally conducted by telephone and can avoid the need for a formal conference or hearing.
If you choose not to have a conciliation, or you have a conciliation that fails to produce a settlement, the case will automatically go to a hearing or conference unless the employee formally discontinues their application. Fresh HR Insights recommends that you do attend a conciliation meeting and we can support you in this. We can act as your representative.
The potential cost of a successfully played unfair dismissal claim on the part of the employee can be crippling on all fronts. So, therefore, it is advisable to come to a reasonable agreement of settlement and where you can stay outside the courtroom. Although you could win in a courtroom since the chance of winning is 50/50, appearing before a courtroom could end up very costly not just in money but also time and the stress on you personally as a business owner. Better to avoid it entirely.
You need to note – You are under no obligation to agree to a settlement if you don’t want to at the conciliation meeting. It is your right to maintain your position and proceed to a hearing. But it is in your interests to try conciliation as they are often successful, with 4 out of 5 matters settling at this stage. A settlement can avoid the time delays and costs of having a formal hearing.
The best way however to avoid all this all together is to understand the legalities involved. Legalities that you can’t understand if you don’t ask for help. Your call…
Conciliation are usually held by telephone. The conciliator will be in their office at the Commission. The employer and employee can be in any location, provided it is quiet and they will not be disturbed. A conciliation can take around 90 minutes to complete.
The conciliator will call the parties and introduce them into a telephone conference call. Any representatives for either side will also be called if they are not in the room with the employee or employer. This can mean there are as many as 5 different people on the conference call.
The style of each conciliator may vary but, in general, a conciliation will include the following steps:
- the conciliator explains their role and the manner in which the conciliation is to be run
- each side briefly outlines their story including what happened, any relevant facts and what they want
- the conciliator may allow or ask questions
- the circumstances, and any issues arising, are discussed – the conciliator may talk separately to the parties. While this is happening the party not in the private discussion will be disconnected and called back later. In these private discussions each side is given the opportunity to speak to the conciliator about their situation. The conciliator will discuss with them proposals that might lead to a resolution. The conciliation can continue in private discussions for some time, as the conciliator relays proposals and counter-proposals from one side to the other. This process may help the parties reach an agreed settlement.
- the conciliator helps the parties to reach agreement by identifying common ground, suggesting possible options and sometimes by making recommendations and helping the parties draft an agreement in writing.
After the private discussions all the parties come back together on a joint conference call. If an agreed settlement has been reached the conciliator will confirm the details with the parties. But if no agreement has been reached the conciliator will explain the next steps in the process, which is going to a formal conference or hearing.
Deciding on letting go of an employer is never an easy task. This is a fact that many business owners have come to terms with. Regrettably, some had to learn the hard way. There is nothing bad in letting go or dismissing an employee. What would be considered wrong is dismissing the employee in a “not so legal way“ I mean, if an employee is always absent, does not do his work well and is causing you to lose productivity, then he should walk the plank.
But hold your horses, you cannot dismiss employees just as you feel unless you want to be plagued with the problems and costs that come with settling unfair dismissal claims.
To prepare yourself and your business from unfair dismissal claims, observe the following procedures before dismissal:
- Clear communication: the importance of communication in a company cannot be overemphasized. Communication is instrumental in preventing feelings of hostility, humiliation, prejudice, and favoritism. Draw out or review policies and management systems that determine the disciplinary procedures. Apart from engaging your employees, it depicts a transparent atmosphere in the organization. The disciplinary procedures should be communicated to the employees and if possible, presented in a handbook.
- Employee handbook: This will be one of your weapons when claims arise. The handbook should be designed to include internal policies and legislative framework within your company. It should be comprehensive and at the same time, easy to use. It should be structured to give room for implementing organizational changes. You can easily fall back on this when (or if) a claim does come up.
- Key performance indicator (KPI) and staff performance: A way to check an employee’s performance is to set KPIs as this will aid to avoid precarious situations in the future. Your aim should be to create one if you have not and implement it. Employees can use this to calculate their performance and determine if they are falling short. It helps to maintain an optimistic approach to work.
- Keep records: In any employee performance related discussion, ensure that there is an independent and impartial witness who can give an unbiased third-party opinion on the subject of the discussion if the need ever arises. Additionally, interactions with employees should be recorded. The documentation can be used to update employee human resource files and correlate it with their warnings, disciplinary actions and performance. Although keeping records help you to comply with the legal ACT, its usefulness comes to play in the face of an unfair dismissal claim by an employee. “If it isn’t written down it didn’t happen”
- Investigation: Instead of assuming, get your facts right before dismissing an employee. If needed, it can be conducted by an external investigator. Investigation ensures that your grounds for dismissing an employee is not only legal it will also be fair Just and reasonable.
- Give your employee an opportunity to prove you wrong. An explanation does not have to be by words. It could be by actions. Before deciding on dismissing an employee, allow him time to gather his thoughts right and watch for performance improvements. If no feedback is provided after reacting, then you can proceed with the dismissal.
To stand a chance against successful fair work claims, it is crucial to get these procedures right. Even if a dismissal is deemed to be fair it can still be “harsh” or procedurally unfair.
What is an unfair dismissal?
Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner.
The Fair Work Commission may consider an employee has been unfairly dismissed if:
- the person was dismissed
- the dismissal was harsh, unjust or unreasonable
- the dismissal was not a case of genuine redundancy
- the employee worked for a small business and the dismissal was not done according to the Small Business Fair Dismissal Code.
What is harsh, unjust or unreasonable?
The Fair Work Commission will decide if a dismissal is harsh, unjust or unreasonable, and they consider all of the following circumstances:
- was there was a valid reason for the dismissal related to the employee’s capacity or conduct
- was the employee notified of that reason and given an opportunity to respond
- if the employer didn’t allow the employee to have a support person present at any discussions about the dismissal, was that unreasonable
- whether the employee had been previously warned that their performance was unsatisfactory
- If the size of the business, or lack of dedicated human resource management specialists or expertise impacted on the procedures that the employer followed when they dismissed the employee, and
- any other matters that the Fair Work Commission considers relevant.
Fresh HR Insights are experts in the dismissal process.
If you have any questions about the reason for dismissal or how to go about dismissing an employee for either conduct or capability, then call us on 0452 471 960 or book a FREE 30-minute general consultation HERE
We also have available fact sheets and eBooks that help you in the Dismissal process. We have listed these below – Click on them to find out more.
Did you know that Fresh HR Insights also offer a range of Workshops for Small business – find out what we do HERE – If you cannot see what you are after then give us a call on 0452471960 and discuss your needs.
Just like traps scattered on a farm, unfair dismissal is a complicated and daring area of employment laws. Like a trap, most times, uncareful employers often get spooked. Every employer knows that there are laws which regulated the dismissal of an employee. Failure to follow these laws and you might end up in a conciliation meeting or if this fails to reach agreement you may need to visit the courthouse early. What could be more daunting than visiting the courthouse or employment tribunal would be paying fines embodying compensation to the aggrieved employee.
An obscure fact that every employer needs to come to terms with is that there are consequences for their actions. By that, I mean negative consequences. You cannot just dismiss an employee unfairly and give them a tap on the back, no! there are consequences.
Lets look at what this can mean for the employee – although we get that at times you may just want to be rid of under-performing employees or those displaying unacceptable behavior we wanted to at least point these out.
Emotional consequence. For every unfair dismissal, the employees end up losing their job and their means of sustenance. The process of going through an unfair dismissal may tell on their emotional health. Their stress level might increases, chest pains, insomnia and panic attack may all begin to surface. They might start to experience a series of mood swings and anger that they normally would not have shown, until they become emotionally wrecked. And they will blame you for it. This is why you should (or at least try) to get it right.
Also, unfair dismissal could attract psychological consequences. If you think only people who hit their head in an accident get post-traumatic stress disorder, then you may be surprised. Since the unfair dismissal was a traumatic experience, asking if it could lead to a disorder would be considered “begging the question” Mental health is more than mental illness, it can be the absence of the mental strength to move on. After an unfair dismissal, the aggrieved employee may begin to demonstrate psychological symptoms such as anxiety, irritability, cognitive difficulty, and depression.
The emotional, psychological, and behavioral fallout from unfair dismissal should be a factor worth noting by employer’s or business owner. At least if a dismissal is the only available outcome then follow a fair and just process. Terminating based on unsubstantiated discretion is setting yourself up for a claim.
Fair reasons for dismissal include
Capacity – if the employee lacks the ability, or is incapable, of completing the job
Performance – if the employee’s performance is below what is required for the job, or if they are not meeting the standards outlined in their employment contract
Misconduct – if the employee’s behavior is below workplace standards, or if they take part in serious misconduct
Redundancy – if the job which the employee was previously completing is no longer necessary for the business, or technology has made their role unnecessary
Some simple steps include – Telling the employee in writing about the allegations against them, give them the opportunity to respond to the allegations and also allow them to have a support person present at any meetings. Workplace operate under a structure of fairness and equal opportunity, it is therefore not only ethically right but right that if you intend to dismiss that the employee has a chance to defend themselves.
So what does the above mean for you as an employer –
When an employment tribunal is addressing the case of unfair dismissal, they would consider the potential consequences the dismissal will have on the employee and this will ultimately affect their ruling. From experience, it does not always end well for the business owner or employer.
This is why employers should be careful and clear on employee dismissal decisions. What may seem civil and decent to you might mean something different in the face of the law. Pay attention to workplace culture, examine the fact sheets (get your free fact sheet here) and dismissal regulations. Instead of leaving yourself open to legalities and costly compensations, stay sensible and avoid turning a fair dismissal into an unfair one.
Lets look at what the Commission look at with Unfair Dismissal as set out on Fair Work Commissions website – calculating Compensation for Unfair Dismissal
Outcomes for unfair dismissal
There are 3 possible outcomes that the Commission can order if a person has been unfairly dismissed. These are:
- to order that a person gets their job back (reinstatement)
- to order the payment of money (compensation), or
- to make no order.
Let’s look at the Compensation in some detail
What does the Commission look at? The Fair Work Act 2009 sets out a series of issues that the Commission must take into consideration when deciding if compensation should be ordered.
Step 1 – Calculate the Remuneration. The commission looks at how much longer the employee would have been employed if they were not dismissed. This is done to determine how much they would have earned. This becomes the starting point of a compensation order (if any). The length of service if also looked at any the work history and any performance and behavior issues.
Step 2 – Deductions – Consideration is given to any money the employee has earned since the dismissal has occurred – this is normally subtracted from the amount in step 1. While income support payments are not generally included , workers compensation payments generally are.
The viability of the employer is also considered – the employer must present evidence regarding their financial position.
Other relevant matters are also taken into account. This can include possible economic loss or gain of the former employee – including sickness, accident, unemployment, earning capacity etc
Misconduct that contributed to the dismissal is taken into account. This can include misconduct after dismissal. Misconduct may involve – a breach of the workplace health and safety act, negligent culpability, threats of violence, or swearing at management.
Step 3 – Efforts to reduce loss – Has the former employee taken deliberate, positive steps to lessen the effect of the dismissal has had on them such as finding a new job.
What is reasonable depends on the circumstances of the case.
A person is not required to take unreasonable steps to reduce their loss such as:
- spending money, or
- selling their possessions (such as sporting goods, cars, boats, etc).
Offers or re-employment – A person who has made an application for unfair dismissal cannot claim that their dismissal has caused them a loss if they have refused to start a new job with the same employer.
Step 4 – Compensation Cap – The compensation cap is the lower amount between:
- half of the employee’s annual wage, and
- $72,700 (as at 1 July 2018).
Note: The compensation cap is updated each year from 1 July. The compensation cap for dismissals taking effect between 1 July 2017 and 30 June 2018 was $71,000.
Calculating the total amount of compensation
The total amount of compensation that the Commission can order is the lower amount between:
- the amount calculated in Step 1, removing any deductions from Steps 2 & 3, and
- the compensation cap calculated above.
What do I need to do?
The Commission will calculate how much money the employee would have earned if they had not been dismissed.
Employee – Provide proof of what you were earning.
Employer – Providing copies of the times and wages record and any formal warnings or other relevant documents.
Wages or income
The Commission will consider any money which the employee has earnt since the dismissal occurred.
Viability of employer
The Commission will look at what effect an order for compensation may have on the viability of the employer.
The Commission will also look at ‘any other matters that it considers relevant’.
If the Commission finds that an employee’s misconduct contributed to their dismissal, the Commission must reduce the amount of compensation by an appropriate amount.
Employee – Provide proof of what you have earnt since you were dismissed.
Employer – Provide proof of the financial situation of the company.
Efforts to reduce loss
The Commission will consider what steps a person has taken to reduce their loss.
Employee – Provide proof of what of what steps you have taken to reduce the impact of the dismissal.
The Commission will compare the amount of compensation calculated to the compensation cap.
The smallest amount is what can be ordered.
Fresh HR Insights are experts in the dismissal process. If you have any questions about the reason for dismissal or how to go about dismissing an employee for either conduct or capability, then call us on 0452 471 960 or book a FREE 30-minute general consultation HERE
Business owners and corporate CEO’s are worried that something in digital innovations is going to change their HR model or their operations. I will say that there is a change of ethos going on in the way people think about their jobs and what their jobs mean to them.
Gone are the days of the “golden watch” or being employed from start of career to the end with one company. “The good old days” when people worked for the same company for 30 or 40 years? Walked off the job with a fancy plaque and gold watch engraved with their name and company logo? When family and friends would gather together to celebrate a person’s journey into their golden years?
We will now have careers that will have multiple jobs, multiple employers and many of us will work part-time. We are building individual portfolios of work experiences. We have the rise of the Gig Economy – although there are two thoughts on the gig economy, where million self-employed Australians work on a freelance or project basis rather than in permanent jobs.
- the gig economy is a haven for contractors and companies because it boosts labour market flexibility.
- it is a form of mass exploitation of younger workers, particularly those born overseas, and a race to the bottom in wages and conditions.
The first thought is the one that most will go with – there are benefits for all and technology certainly has played its role. Although there is an increasing ripple in the idea it is mass exploitation – think Uber, Deliveroo and other mainly food couriers.
The relationship between employees and employers is very different than ever before. There are a whole bunch of new things people are trying to do with technology. The purpose of technology today is not just to automate things; it’s to make the work experience better. So, there are some lessons to be learned by these digital innovations that we can take in our businesses. I’m going to try to give you some context of what it means to HR.
Dealing with digital disruptive innovations
Since the beginning of the internet and the adoption of technology, productivity has not gone up significantly, and one of the reasons for that is we have not figured out how to adapt to all that technology. We don’t know what virtual reality and artificial intelligence are going to do. Our job in HR is to curate and make sense of that and use productively in a way that improves the employee experience at work.
Have you tested the on-line recruiter platforms, or the people less induction process?
The human brain can only continue to maintain relationships with about a hundred people, and so companies their business; that’s why a lot of organizations decentralize themselves into fractal Organizations. How people interact, work together, share information that’s all about culture and shared values, communication technology, and systems. The problem with us from the standpoint of HR, the way we designed our operation for the traditional organization, whether it be performance management, communication, the way learning takes place and decisions are made. You can leverage some of the techniques of taking care of your people and being a highly engaged digital organization yourself.
Do you remember the term Personnel Management? The aspect of management that is concerned with the work force and their relationship with the entity is known as Personnel Management. It’s a traditional approach where people were treated as machines and tools and the management role was transactional compared to transformational as we now have with Human Resource Management. It focused on mundane activities like employee hiring, remunerating, training and harmony where today it is treating manpower as valued assets, to be valued, used and preserved.
Value and invest in Human resource planning technologies
Now if you look at the progression of the talent market, you can see where it’s gone. Today we’re trying to measure engagement, feedback; we’re trying to do performance management, build goal management systems though ERP technologies. In the world of technology, we are now shifting our platforms away from the cloud on to mobile, so the Human Resource Planning is going to be changing with it.
There’s a whole new breed of applications out there being invented by creative people that are going to change what we can do in HR, tools for constant employee feedback, mood management tools for wellness and health, work-life management, new forms of data-driven engagement tools, tools that monitor workplace. As we aspire to build empowered highly engaged teams, coach and develop them, let them create their own goals, keep them aligned to other people and give them feedback, so a revolution of building new performance HRM is taking place.
Human resource management is not sitting around in a conference room with a whiteboard designing a process, it is studying the working the activities and workday lives of your employees, understanding what they do, and developing interactions, systems and tools in an iterative fashion to make their work better; that is the essence of HRM.
We would love to hear your thoughts on HRM and where you see if going. Perhaps a discussion on if technology is creating a verbal defecate in our workplaces – people have forgotten to talk instead emailing, texting, and messaging. Job applications are done online and if you don’t fit the tick box that’s it, all over. I am divided as to how technology will impact the future – what will happen to us as a society and what will our workforce look like.
Share your thoughts.
When we think of the issue of unfair dismissal, there will always be disputes about who actually bears the ultimate cost, the employer or the employee. While some would say it is the employee, other schools of thought seem to think it is the employer. But who does bear the cost? A sneak peek at what unfair dismissal is.
According to labor law, an unfair dismissal is an act of employment termination, made without good reason or contrary to the specific legislation. Put in another way, when there is a good reason for dismissing an employee, but the dismissal happens through the wrong procedure.
Now when an aggrieved employee wants to raise a claim of unfair dismissal, they have to lodge an unfair dismissal application to the commission responsible for handling such matters in the country.
For example, the Fair Work Commission is responsible for such in Australia. When this procedure is completed, the commission urgently sends a due copy of the application to the employer who then reciprocates and send a response to the commission and the ex-employee. More often than not, the commission tries to settle the matter through agreements, but where this is not possible; it progresses to a legal hearing.
To examine which party bears the ultimate cost of unfair dismissal, it is important we examine it from different perspectives:
Financially, in most cases, for an aggrieved ex-employee to lodge an unfair dismissal application against a former employer, they will have to pay a particular fee, before they can start the process. This is currently $71.90 – This fee can be waived in cases of serious financial hardship.
Thereafter, the cost reduces considerably on the side of the employee and in some cases, the fee may even be refunded if the application is not accepted. For the employer, especially employers or large companies who are being accused of unfair dismissal, they will bear the cost of hiring a Human Resource/ Employment Relations Consultant or a lawyer to ascertain if truly there’s legal backing for unfair dismissal.
Also, in a case where the employee was truly unfairly dismissed, the compensation paid by the employer is usually hefty, when compared to the compensation paid by the ex-employee, if any at all when the claim is unsubstantiated. While the Fair Work Act in Australia allows costs payment if either of the party acted unworthily or without genuine cause. It should also be noticed that the same act states that all parties bear their own cost.
Note; Compensation is capped at 26 weeks’ pay and the total amount of compensation able to be awarded is half of the high-income threshold amount that applies immediately before the dismissal. This is currently $71,000 as the high-income threshold until 30 June 2018 is $142,000
Additionally, either parties can be detrimentally affected by an unfair dismissal application. Look at it this way, it can affect the employee’s ability to get another reasonable job or affect the company’s productive. If a person starts an unfair dismissal application against their former employer and after the whole proceedings, they are found to have acted inappropriately or without cause, they might find it considerably difficult to get another good job as acts like this are closely monitored by other employers.
For an employer found guilty of unfair dismissal, not only would they lose customers trust, but there will also be internal employee uproar. The public sentiment would be in support of the unfairly dismissed employee, and the image of the company will be damaged. Before long, stakeholders begin to express their dissent and the company has to deal with it.
Before embarking on dismissing an employee unfairly, it is noteworthy employers come to grasp the cost that they would be paying. Whether the dismissal was intentional or not, as far as it is unfair, employers end up bearing the greater cost. No matter how you look at it, it ultimately affects the profit gearing and perceived image.
The team at Fresh HR Insights fully understand and appreciate the costs involved with terminating an employee either because of their conduct or their capability. Which ever it is we strongly advise to tread carefully and follow a process. If you need to terminate give us a call on 0452 471 960 or alternatively book a time to chat through our booking system.
Some facts: More than 90% of unfair dismissal claims in 2017 were resolved before they reached a hearing involving a Fair Work Commissioner, but experts say disputes can still cost businesses significant time and money even if they never make it to the formal hearing stage.
The Fair Work Commission’s annual report in 2016-17 revealed 14,587 claims were made for unfair dismissal against Australian businesses in the 12 months leading up to June 30. On average, this is 280 claims a week.
If you want to find out more about the Disciplinary process, we have developed an eBook that will guide you through the process step by step and provide tips and templates. For the month of March 2019 this eBook is on sale.
Managing Separation and Termination training – Duration 3-hours for up to 10 people
- Understanding Legislation
- Knowledge of what Fair Work look for in an unfair dismissal claim
- Procedural Fairness awareness
- Skills and Knowledge for Disciplinary Action
- The role of Managers and Supervisors
For small business human resources anywhere that are looking to have a merry year, it is important that you pay attention to patterns and trends. Apart from start-ups, experienced HR and ER support professionals understand that observing trends for variations and a recurring pattern is important for prediction, forecasting and ultimately getting the best out of the future to come. In a bid to keep HR relevant and ahead in the ever competitive Australia market, below are three trends we have observed as recurrent and tops our list of trends that are likely to repeat itself.
Technology: does this seem familiar? Yes, it does. There have always been big talks about how fast Artificial intelligence (AI) will reinvent the HR world. Well, Artificial Intelligence is here and both large and small businesses need to get their grip on it. Artificial Intelligence is the kind of leverage that paves way for an efficient, productive and improved workforce. AI cuts across recruiting, engaging, training, and retaining employees. Think about this, rather than spend hours sorting through job profiles, CVs, and so on, technology can help reduce the time by simply running algorithms.
A report obtained from Deloitte’s 2018 Global Human Capital Trends indicated that about 72% of organizations agree to the importance of HR and are embracing it.HR can drastically reduce the time spent on recruiting and screening of employees and simply focus the energy someplace else. AI is a way through which HR teams and professional on the Gold Coast, and in Brisbane, and Australia as a whole can safeguard their company’s future. It is definitely worth checking out.
Workplace Trust: Results from the Government Institute of Australia indicates that Australians have lost all faith in corporate ethics. The business sector is faced with a situation where the employee confidence in HR is at an all-time low. Most times, HR teams assumes their employees trust them, where conversely, they have a negative perception and view of HR. Creating trust in the workplace is a fast-rising trend in the workplace today. HR have come to understand the need for prioritizing employee’s confidentiality, the place of sincerity and going beyond their open door policy to intentional relationship building. HR is learning not to jeopardize work confidence by not favoring one work relationship over the other. For example, they now maintain equal direct coaching for women in business and men in the business.
Perpetual learning: Companies are currently in hot pursuit of employee development and learning. As we mentioned earlier, technology is causing a rapid and continuous change to how business is conducted. To keep up, businesses need to invest heavily in transversal and job-related skills. The big problem is; we do not know to what extent the change will be. However, to be able to handle different tasks, it is important for HR to invest in employee skill learning.
It is fast dawning on HR teams and professionals that they may be doing too much for little result. Not only that, but their initiatives are also always too long to cause the needed effect. To create the needed impact, simple and seamless organization is all that is needed. But what is the real solution here.
We encourage and would love to get some feedback on your thoughts? Please comment below
Build Your Dream Workplace
“Men attribute their success to themselves and women attribute it to other external factors.” (Facebook COO Shery Sandberg)
There are 49.6% are female of total population and only 50% are working. Fact is that Women’s are continuously progressing and the number of working women is increasing continuously but still there are Top 5 hardships that women’s have to face in Australian Organizations such as Work-life balance, Equal pay, Harassment, Less Career opportunities and Children and career related issues.
It’s a Global issue, in Asia Organizations they do not prefer female workers because they have less experience and there is the perception of a high turnover of females due to them raising their child. Australian HRC received more than thousand complaints under Sex Discrimination Act in 2011-2012. In 2017-2018 27% of complaints received by the Human Rights were lodged under the Sex Discrimination Act. In terms of employment this was 82% in the same year.
Understanding of the Sex discrimination Act (SDA)
The Sex Discrimination Act 1984 (Cth) makes it against the law to treat you unfairly because of your: sex; gender identity; intersex status; sexual orientation; marital or relationship status (including same-sex de facto couples); family responsibilities; because you are pregnant or might become pregnant; because you are breastfeeding.
The SDA also makes sexual harassment against the law. You can use the SDA to get fair treatment in:
- Employment – getting a job, terms and conditions of a job, training, promotion, being dismissed.
- Education– enrolling or studying in a course at a private or public school, college or university.
- Accommodation– renting or buying a house or unit.
- Getting or using services – such as banking and insurance services, services provided by government departments, transport services, professional services like those provided by lawyers, doctors or tradespeople, services provided by restaurants, shops or entertainment venues.
What is sex discrimination?
Sex discrimination happens when a person is treated less favorably than a person of a different sex would be treated in the same or similar circumstances. For example, it may be direct sex discrimination if male employees are paid more than employees of a different sex who are doing the same work.
Discrimination also happens when there is a rule or policy that is the same for everyone but has an unfair effect on people of a particular sex. This is called indirect discrimination. For example, it may be indirect discrimination if a policy says that managers must work full-time, as this might disadvantage women, who are more likely to need to work part-time due to responsibilities for caring for children.
These issues usually arise because of long standing norms that Males are in the workplace and the providers and the women remain at home to bring up the family. But now Organizations have made strong policies, laws and programs to deal with such problems.
Following are the initiatives that Australian Government took to boost up women participation at workplace. I have set these out below.
- 18 weeks paid parental leave at minimum wage
- Two weeks paid leaves for Fathers
- Flexible work arrangement under National employment laws
- Special care of employees having children of school age and employees facing family violence or providing support to a family
- Equal wages Order by Fair Work Australia in 2012
- At least 40% women must be on Australian Government boards; therefore women’s received 38.4% of Government board appointments in 2012
- Policies to focus on Gender diversity at workplace
- Strong policies to reduce sexual harassment
- Sex Discrimination Act 2011 to reduce sexual harassment
- Pregnancy Guidelines 2001 focuses on all issues and its solution regarding pregnancy
Because of above policies number of women on AXS boards has to increase from 8.3% to 15.4% within 3years. Government has made quota system to increase the Percentage of working women. Women’s are proved to be more supportive, rewarding, Compassionate, productive and influential. Link
From December 2018 Modern Awards included new ruled about request for flexible working. Before responding to a request from an eligible employee, an employer must first discuss the request with the employee to try to reach an agreement about a change to their working arrangements. Requests can only be refused on reasonable business grounds. If employers refuse a request, they need to provide the employee with a written response.
What the new arrangements require
Employers have greater consultation obligations than previously. If an employee makes a written request for flexible working arrangements, employers must:
- Before formally responding, discuss the issue with the employee and genuinely try to agree on an arrangement that suits both of you. The discussion should cover the needs of both parties, the potential consequences for the employee if no change occurs, and any reasonable business-related issues.
- Respond to the request in writing within 21 days.
- If you refuse the request, the written reasons must include the “business grounds” for refusal (see further below), explain why those grounds are relevant, and any changes to working arrangements that you are able to offer.
- If you agree to the original request, or agree on an alternative flexible work arrangement, you must formalise it in writing.
What are “reasonable business grounds”?
“Reasonable business grounds” are defined in sec 65(5) and (5A) of the Fair Work Act. They include:
- Excessive cost of new arrangements
- Unable or impracticable to change other employees’ work arrangements to accommodate the request, or recruit new employees
- Significant loss to efficiency or productivity
- Significant negative impact on customer service
Note that you need to quantify any of the above reasons in your response, not merely state that they exist. The Act’s dispute resolution procedures will apply if the employee is unhappy with the way a request was handled and wants to take the matter further.
It’s not all doom and gloom for women – we have many examples of successful women’s including Shery Sandberg, Helen Gurley, Shery Sandberg, Heather Thomson, Ellen Alemany, Alexandra Lebenthal and many more.
Still Word Economic Forum suggests that “It will take 170 years more to have men and women in equal number at workplace” according to the World economic Forum. The report says: “More than a decade of data has revealed that progress is still too slow for realizing the full potential of one half of humanity within our lifetimes.”
Although Governments and Human rights departments initiate multiple policies, laws, programs and to make sure their implementation there is another way to look at this. The Law of attraction and Self leadership theory suggests that if you want to be successful you need to think positive & make yourself confident.
“You are the creator of your own reality.” Anonymous
“Your whole life is a manifestation of the thoughts that go on in your head.” Lisa Nichols
The Law of Attraction works like this: If you think of a thought, you will attract similar thoughts to yourself. This law requires us to understand that our thoughts work like magnets and have a certain frequency. Therefore, as you allow certain thoughts to dwell in your mind, it somehow attracts all similar events that are on the same frequency, whether they are negative or positive thoughts.
“What you think, you create.
What you feel, you attract.
What you imagine, you become.”
Women at Workplace should keep following points in Mind to forge their way to success
- Stop undervaluing yourself because to be a Women is your Positive point
- If you achieve a good job don’t stick, Find another good opportunity
- If you disagree with any point, Speak up
- Be strong at your arguments, your “yes” should mean “YES” and “NO” means “NO”.
- Negotiate about your pay before employer make final decision. A survey shows that men salaries are 7.5% higher than women’s because they negotiate
- Keep your eyes and ears open at workplace
- Participate in extracurricular activities at your workplace
- Don’t afraid, face and win the situation
- Don’t be a follower, be the Inspiration for others
- Be realistic, set your Goals and use Path goal strategy to achieve your Goal
- Be Confident, Be strong
“What makes companies succeed the most, what factors actually matter the most for startup success? If you take a group of people with the right equity incentives and organize them in a startup, you can unlock human potential in a way never before possible.”
Bill Gross – Founder and CEO, Idealab
When it comes to human resources, it doesn’t matter what size you are. You have the same issues; you need to recruit the talents and manage them; you need to figure out how to engage and pay them, and how to terminate the relationship when you have to.
When we talk about human resources, we’re talking about that function in an organization that handles the people’s stuff right. We are feeling beings; we want to feel appreciated, to belong, and to believe we’re making a meaningful contribution. To grow confidence in a start-up Business, we must address the very human needs. When it comes to meeting human needs, it has a bottom-line business impact. The more the employees are satisfied, the higher the profitability.
Richard Branson isn’t just a shrewd businessman, he’s a humble man to boot – the strongest message he has is you’ve got to be “nice to people”. Seems obvious, right? Unfortunately, most businesses are there to make more money and when they are so focused on how to go about doing that, they don’t necessarily treat their employees as though they are people but rather like cogs in a machine. Ironically it is when you treat your employees best that they produce the best work – because, guess what, they feel valued!
When things don’t go right there are processes business owners need to manage. It is no longer as simple as “Fire Him/Her” – Employees are getting smarter with their rights and you need to make sure you keep ahead of them.
Here are some examples that will make you go “JUST WOW” –
An employee who was responsible for the death of 50 chickens after drinking alcohol before work on Melbourne Cup Day, has won an unfair dismissal case due to a lack of procedural fairness, and uncertainty and inadequacy of the employer’s workplace policy. Cannon v Poultry Harvesting Pty Ltd  FWC 3126
If terminating an employee’s employment in reliance upon CCTV footage, ensure that the employee is given an opportunity to examine and respond to the footage before the dismissal. In Walker v Salvation Army (NSW) Property Trust t/as The Salvation Army – Salvos Stores  FWC 32, the employer dismissed a store manager for serious misconduct amid allegations of theft. The employer relied on CCTV footage that purported to show the store manager holding four $50 notes. The store manager was not given an opportunity to properly view the CCTV footage nor respond to it during the investigation or prior to her dismissal. The unfair dismissal claim succeeded.
Even dismissing an employee who you believe Clearly has crossed a line may not be as simple as you think. Gill v Jetstar Airways Pty Ltd  FWC 1472
Disciplinary procedures and correcting poor performance
We’re going to be giving you an overview of how to conduct a disciplinary process. A fair procedure is VITAL. Otherwise, any resulting dismissal is likely to be Harsh, Unjust and Unreasonable.
The employer must have a fair reason for dismissal. Misconduct is a potentially a fair reason for freeing the employer concerning Start-up Business BUT you need to make sure you investigate, have your facts, have followed a procedure and given the person the opportunity to not only respond but have a support person.
So, let’s look at the procedure what procedure should an employer follow. Let’s say something has happened.
- Firstly, consider whether any formal action is necessary. Would a quiet word be enough? If you decide to take informal action, it probably should be verbal only, and not put on a disciplinary record although a manager should keep a note of it.
- Secondly, consider whether an investigation is needed. What’s required will vary greatly depending on the circumstances. You need to be able to put the substance of the allegations to the employee so that the employee can give a meaningful response.
- Thirdly, the suspension is only appropriate if there is a potential threat to the business or other employees or if it is not possible to investigate accurately. A knee-jerk reaction to suspend could lead to a claim for breach of trust and confidence in HR, and this could be an expensive claim. Suspension should be on full pay, and it’s safer if the employment contract provides for the right of suspension. Keep the suspension under review and for a shorter time as possible.
- Fourthly, obtain all the evidence, conduct the investigation as quickly as possible, and speak to the witnesses. When interviewing the witnesses, they should be advised to keep the matter confidential. Consider if you need any physical evidence for example emails, CCTV and phone records.
Then and Only then can you determine on the balance of probabilities that the employee has engaged in behavior not desirable to the business. This is when you will start the disciplinary process – the invitation, allowing a support person, the right to respond to the allegation and then either re-investigate new info you have or decide on the outcome. Such outcomes may include no action being taken, a written apology, counselling, a warning, demotion, or dismissal, depending on the seriousness of the findings.
What to do before dismissing an under performing employee
If unfair dismissal laws apply to the under performing employee, you should do these things before making a final decision to dismiss them:
- Inform the employee that their work performance is unsatisfactory.
- Ensure that the employee is aware that their ongoing employment will be in jeopardy if the performance issue is not resolved. Confirm this in writing.
- Keep records of any warnings that have been issued to the employee.
- Allow the employee to respond to what you have outlined in performance discussions.
- Give the employee a reasonable amount of time to improve their behaviour and work performance.
As an HR Support in Gold Coast and Brisbane, Fresh HR Insights give SME Business support and figure out the natural differences that happen within an organization. We are there when you need us – No lock in contracts – we focus on getting it right and exceeding expectations. Check out our testimonials or give us a call and find out for yourself.
If you want to go it alone then we have the solution for you – our fully comprehensive eBook on the disciplinary process – it includes everything you need including documents and templates for the letters you will need along the way.
NOT SURE then how about our 30-min support via our advice line BOOK HERE
Example areas for advice include:
- Managing employee issues such as lateness for work, absent without leave, under performance and poor conduct;
- Dealing with complaints of Bullying and workplace investigations;
- Termination of employment, what you can and cannot do and what is the correct procedure to follow;
- Conflict Management and Communication strategies;
- Advice on meeting legislative requirements;
- General advice on the Unfair dismissal or other Fair Work Commission processes;
- How to respond to and deal with workplace complaint; and
- Employee entitlements including the correct awards and pay rates;
- Pragmatic advice on Human Resources issues
- Guidance on disciplinary actions for example, informal and formal warnings
- Guidance on Redundancies and terminations
Disclaimer: The above information should not be used as a replacement for expert advice and is written as an overview of the Disciplinary process. Please contact our team at Fresh HR Insights for support Mbl: 0452 471 960
“Regular” casual employees covered by an award have a right to request that their employment be converted to permanent employment, following decisions by the Fair Work Commission (FWC) last year. A Full Bench of the FWC has now made some changes and clarified a few matters in another decision released earlier this month.
Who is a regular casual?
A regular casual is an employee who has over a calendar period of at least 12 months worked a pattern of hours on an ongoing basis and could perform the same work as a permanent employee without significant adjustment being required.
Such an employee can request a conversion to permanent employment, but must do so in writing. The employer can agree to or refuse the request, but can only refuse on “reasonable grounds” and after consultation with the employee.
What has been changed?
The FWC considered submissions from a wide range of parties, and its decision will make the following changes
- The 12-month eligibility period will become a rolling period, not a one-off, so the employee’s right to request conversion will remain continually exercisable.
- Casual employees who have worked an average 38 hours per week over the 12 months and are seeking conversion to full-time employment will now be required to have worked “equivalent full-time hours” over 12 months. This change is to allow for the fact that the employee may have taken periods of leave that could have reduced his/her average.
- An employer’s grounds for refusing a request must be “based on facts which are known or reasonably foreseeable” (eg that the job will not exist in 12 months’ time), not speculative or based on a general lack of certainty about future needs.
- The requirement that the employer and part-time employee agree in writing on the terms of employment (days, hours, start/finish times, breaks, overtime and notifying variations) have been clarified by standardising the provisions – in some awards, the employer was previously only required to “inform” the employee.
Three awards that previously did not have casual employment conversion clauses will now have a clause inserted.
Minimum engagement for casual and part-time employees
This decision also clarified the minimum engagement period for employees to mean that that they must be engaged and paid for at least two consecutive hours on each occasion that they are required to attend work. This means that an employee must be paid for at least two hours every time he/she is called in, which in turn that an employee called in twice on the same day must be paid for at least two hours each time. Previously an employee could be called in twice or more but only paid for two hours.
The FWC also made some other changes to minimum engagement period provisions in some specific awards.
4-yearly review of modern awards – part-time employment and casual employment  FWCFB 4695, 10 August 2018
More news on casuals
In another recent decision by a Full Bench of the Federal Court, a large number of employees currently described by employers as ‘casuals’ could in fact be permanent, thus removing any need to request permanent employment Read more here.
By Mike Toten on 21st Aug 2018
If you own, run or manage a business, the conduct of your employees should matter. And yes, while you need to ensure everyone working in your office, warehouse, factory or other workplace behaves in line with legislation and rules, it’s also important to create a work environment where everyone feels respected.
One of the simplest ways to make sure your staff all understand what you expect from them in terms of their conduct is to create a policy that clearly outlines your expectations without ambiguity.
One way to do this is with a Code of Conduct. Asking your employees to read and sign your Code each year will ensure you are all singing from the same hymn sheet. This helps to remind them of what’s acceptable – and what isn’t. It also means that if things change, new legislation is introduced or something relevant needs to be added, you can do so in timely fashion. Remember, however, a leader leads by example so you also need to follow the Code of Conduct.
There is no place for “do what I say, not do what I do” in a workplace.
What should be in your Code of Conduct?
Some details can be specific to your business and industry. However, when it comes to treating colleagues with respect, there are a few core areas you need to cover off.
Your Code of Conduct must be clear on what actions will not be tolerated. Go into detail, it is not enough to say “harassment and bullying will not be tolerated”. This will also be covered off in more detail in your must-have Harassment and Bullying policy.
For example, provide a list of what constitutes harassment and bullying. This might include (but is not limited to):
- causing offence
- abusive behaviour
- belittling others
- threatening behaviour
- physical assault
- interfering with a colleague’s personal effects
- any kind of sexual harassment, including verbal and physical.
Your Code might also include expectations relating to:
- dress standards
- other employment
- talking to the media
Put these details quite high up in your Code of Conduct or Workplace Behaviour Policy. That way everyone it will be front of mind when your employee signs it to confirm he or she read and understood it and will abide by the rules.
Respect in the workplace
While similar to the above, it’s not the same and should not be treated as such. You don’t need to make this a big part of your Code. Simply reinforce the rule that each employee deserves respect and no-one should experience any victimisation what-so-ever.
Also, make it clear that rule is for all levels of staff. No-one in management has the right to act disrespectfully towards a colleague or employee, or vice versa.
In short, make it clear you expect all employees to uphold a professional attitude at all times, regardless of whom they’re working with, or for, or where in the workplace they’re working.
Chain of command
While this is something that’s usually associated with the military, keeping a chain of command works well in an office working environment too. If your workplace has assistants, supervisors, and managers – however, they’re titled – make it clear that employees must raise any issues with their direct line manager. Alternatively, if it’s a sensitive issue, they can go directly to the HR department, if you have one.
What isn’t acceptable is employees sharing gossip, telling tales and not going through the right channels with a complaint or problem.
Create a respectful working environment
By sharing a Code of Conduct with your employees, there can be no excuses for disrespectful behaviour. It will not only help your HR department but it will also help everyone working for you feel confident you take their well-being seriously.
Note: In the absence of a Code of Conduct policy, dismissing an employee because of ‘unacceptable behaviour’ leaves you open to a successful claim for unfair dismissal because the employee could argue he or she was unaware such behaviour was inappropriate in your workplace.
Employees need to know that their employers understand the need for mutual respect between all staff. If you can show your commitment to running a business where all your team understands what behaviour is acceptable and what isn’t, then you’re sure to be on the right track to attracting the brightest sparks in your industry!
How to create respect in your workplace with a Code of Conduct By Paulette McCormack on 14th Aug 2018
This Policy outlines the leave and support entitlements offered to employees who are subject to domestic or family violence.
This policy has been prepared in response to the recent legislative change, effective from 1 August 2018, which requires all modern awards to include a clause that entitles all employees (including casuals) to five (5) days of unpaid domestic and family violence leave.
Award free employees are not yet entitled to unpaid domestic and family violence leave, but some businesses may find it administratively easier to implement this policy for all staff.
What is family or domestic violence leave?
Unpaid family or domestic violence leave will be available in the event that the employee needs to do something to deal with the impact of the family and domestic violence and it is impractical for them to do it outside their ordinary hours of work.
For example, making arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services.
How to calculate and accrue the leave
Five days of unpaid leave will be available at the commencement of each 12 month period rather than accruing progressively during a year of service. The leave will not accumulate from year to year.
This entitlement is unique in that, the full 5 days of unpaid leave will be available to part-time and casual employees. This is different to some other forms of leave (eg annual leave) which are not provided at all to casual employees.
Options for employers
The policy also provides employers with an option to provide their employees with additional entitlements (above and beyond what is legislatively required). For example, employers may wish to provide paid domestic and family violence leave or allow their employees to access paid personal/carer’s leave entitlements for reasons related to domestic and family violence.
Before using or implementing the leave policy, please ensure that it is consistent with any enterprise agreement, contract, or award which applies to the employees in your workplace.