At a recent training event, a senior HR manager said to me, “I’m trying to manage this difficult, sometimes ill, often absent and prickly staff member – what can I do?” When I enquired about the performance and behavioural issues that concerned the HR manager, and what the desired outcome was, they stated:
The HR manager could see no way of managing the difficult staff member other than by exiting her from the business. However, given the complaints that the staff member had made, the HR manager was concerned that any further attempt to manage her behaviour and performance would lead to legal action. Those concerns were validly held. The legal problems that this staff member could agitate include:
Critical to the facts, like so many similar circumstances, is that the staff member only complained of stress and illness once the performance management had started. Further, as a result of her stress claim and resulting behaviour, the relevant managers became concerned, more cautious, reluctant to engage and actually provided her with more chances than they would have supplied to any other employee. As a result, the business had not treated the staff member in a detrimental fashion and had acted reasonably pursuant to workers’ compensation legislation. While there is little or no opportunity to raise an unfair dismissal argument in these circumstances, there remains the daunting shadow of a potential general protections claim.
General protections claims involve a consideration of why the employee was dismissed or otherwise treated adversely by their employer. What (if any) part of the employer’s decision-making in the performance management and termination process involved a consideration of the staff member’s illness or complaint? Given that the employer deserves a tick in respect of all other statutory risk, it would seem inevitable that the risk of a successful general protections claim by the staff member is slight and ought to be dismissed. However, this is not so!
The recent decision of the Federal Court in Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] as applied in Hodgkinson v The Commonwealth [2011] makes it clear that a proper and lawful intention of an employer (which is expressed and actually held by the employer) at the time of terminating an employee will not be sufficient to defeat a general protections claim.
Under the general protections provisions of the Fair Work Act 2009 (which provides protection around illness or injury and the making of complaints), an employee need only raise a complaint that they have been treated adversely as a result of a workplace right before the onus and responsibility shifts to the employer to disprove it. In the Barclay case, it was sufficient that the employer could unconsciously hold an unlawful intention! The fact that the relevant employee in that case was a union delegate was a matter which the Federal Court held had motivated the unconscious mind of the decision-makers, even though it was not apparent in the conscious mind.
What a terrible plight for HR managers when dealing with difficult employees. In the circumstances described above, all of the managers had complained about the staff member’s behaviour and performance. Inevitably, some or all of those managers were aware of her stress-related illness and the complaints that had been made. Although the decision to dismiss the staff member was expressed to be, and in actual fact was, motivated by her behaviour and performance, the evidence before the court will show that considerations of her illness and complaint were present in the unconscious minds of the decision-makers.
To avoid a successful general protections claim being made, employers should follow these tips:
1. Managers need training on general protections claims. Such training needs to be integrated into workplace behaviour training. Managers must understand how and when to communicate to underperforming or poor behaving employees. Such communication must be in a manner which excludes contextually irrelevant details about the employee’s health, union status or any complaint that they may have made in relation to their employment.
2. Where the issue is an employee’s health, or where a complaint has been raised as part of managing the performance of an employee, employers need to limit any conversations that are held to the contextual relevance of the issue. For example, where an employee makes a stress claim, it is appropriate to fully investigate that claim, and, if appropriate, to communicate with the Insurer to seek rejection of the claim. Such communication is discoverable in the event that any later litigation occurs. Therefore, the communication must be clear, objective and limited to the purpose for which the communication is actually occurring.
3. Where disciplinary action is being contemplated, the conversation must be limited to the behaviour or performance of the employee only. Performance management must properly contemplate the limitations that are applied to that employee as a result of any medical advice that has been received (this is the reasonable adjustments test). Once size doesn’t fit all.
4. At the disciplinary decision-making stage, all decision-makers must be asked whether there is any other matter that they have considered which bears upon the disciplinary process. Minutes should be kept to affirm that no person has taken into consideration any of the health or complaint-related information in making the decision. That is, the decision must be one that you would have made irrespective of who the employee is. The only part that health issues may play is in relation to a careful consideration of what other reasonably practicable steps the business has taken to assist the employee to carry out the inherent requirements of their job.
If you follow the above tips, you will have created clear evidence around your actual intentions for treating an employee in a particular way, and you will be able to demonstrate that it is only your actual intentions that led to the decision being made. The objective fairness of this process would exclude, or ought to exclude, a court from considering subconscious influence on the decision-making process.
Andrew Douglas is the Managing Director of Douglas LPT, an integrated legal, HR, recruiting and training business. He is the Editor-in-Chief of the loose leaf publication, The OHS Handbook, and writes on workplace law issues such as Industrial Relations, Employment law, OHS, Equal Opportunity, Privacy, Surveillance and Workers Compensation. He is the principal of the legal division of Douglas LPT and appears in courts, tribunals and Commissions throughout Australia.
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