29 March 2023
No business employs staff with the intention of firing them or managing their underperformance in future. Realistically however, most businesses will have to manage underperformance at some time. Without the right approach, many employers leave themselves exposed to reputational damage, high staff turnover and loss.
When dealing with underperformance or misconduct, employers must straddle the line between acting in its best interests and giving the employee fairness in the process. Done well, effective disciplinary action can turn around staff performance and lead to a stronger workplace culture. Done poorly, however, the result will be poor culture and defence of legal claims.
In this article, we explore four essential considerations for employers when undertaking staff disciplinary action and dismissal.
When underperformance is identified, the employer should not conduct disciplinary processes as a witch hunt. The best processes are done with the intent to improve the staff member’s performance.
Improving underperformance helps employers in many ways. It reduces staff turnover, which allows for greater consistency in the business’ service and operations. It also means less time and money is spent on hiring and onboarding. Less dismissals also means a lower risk of dismissal-related legal claims.
Under Australian law, there is no mandated process for how disciplinary action must be undertaken. Having said that, failing to undertake disciplinary action and dismissal processes in a procedurally fair manner is fraught with danger.
It’s vital that the manager overseeing the disciplinary action or dismissal is capable of taking an unbiased view when addressing underperformance, as well as be able to fairly implement a performance plan with an appropriate timeline for the staff member to improve.
All disciplinary action procedures should also be well-documented in writing so that the employer has – and can rely on – evidence of its good process.
There is a common misunderstanding that casual workers have no termination rights and are far easier to dismiss than full-time or part-time staff.
Casual workers who regularly accept shifts when offered via an employer-implemented system (e.g. a roster), and have done so for more than six months (or 12 months for businesses with less than 15 employees) have the same unfair dismissal rights as permanent employees. Therefore, underperforming casual workers should be treated the same as underperforming full or part-time workers.
Most workers will have unfair dismissal protection. That means if they are dismissed without a valid reason, without procedural fairness, or without having been warned and given an opportunity to improve underperformance, their dismissal may be considered unfair. They may be entitled to reinstatement or compensation.
If an employee believes they have been unfairly dismissed, they can lodge an application with the Fair Work Commission. There is no triage system to determine whether the application has any merit at the outset, so employers will need to respond to all applications made against them. If the application doesn’t settle at a conciliation conference, the matter might continue to a time-consuming and often costly formal hearing.
When dismissing an employee, an employer can make an agreement with the employee for them not to bring a dismissal-based claim against the business, usually in return for a sum of money. But without this, a business can’t stop an employee from making an application. In that case, the business should ensure that it has a sound, defensible reason and process for dismissal to put itself in the best position to successfully defend the application.
If you have any questions about this article or are seeking advice on how to address staff underperformance and wrongdoing, please contact partner Ben McKinley, or a member of our national workplace relations & safety team below.
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.