b. Did you provide the employee with a reasonable amount of time to improve his or her performance or conduct?
If ‘Yes’, how much time was given?
COMMENT: So just how long is a ‘reasonable amount of time’? Vitale says it’s a great question. “I like telling clients that ‘reasonable’ is a word lawyers make a lot of money out of and this is no exception.” He says that previous decisions by the old Industrial Relations Commission demonstrate that what is reasonable depend on how complex the job is.
If the job involves putting a bit of metal in a press, a day or two might be appropriate. If the job is a more complex task (say, an account manager) then you’ll need to give a lot more time. Vitale says this is one area where it is important to get advice specific to your business.
c. Did you offer to provide the employee with any training or opportunity to develop his or her skills?
COMMENT: Another area where you’ll need to provide documentation of training or mentoring you have provided for the struggling staff member.
d. Did the employee subsequently improve his or her performance or conduct?
COMMENT: Vitale says care needs to be exercised in answering this question. “In most cases when you get to this point you’re answering ‘No’ or ‘not to the required standard.’” Documenting problems that have occurred or re-occurred subsequent to the training period is a good idea.
e. Before you dismissed the employee, did you tell the employee the reason for the dismissal and give him or her an opportunity to respond?
COMMENT: “The trick with this question is that the Commission has been a bit red hot on anything that suggests that an employer has made a decision to terminate without hearing from the employee,” Vitale says.
He suggests a two-stage process may be prudent, depending on the complexity of the matter. Have a meeting late in the afternoon with the struggling employee to tell them you are considering terminating them. Let them respond and then go home before having a second meeting the following morning to discuss the issue again.
f. Did you keep any records of warning(s) made to the employee or of discussions on how his or her conduct or performance could be improved?
COMMENT: Record keeping and documenting everything through this process is crucial.
Q.7. Did you dismiss the employee for some other reason?
• Yes
• No
If ‘Yes’, what was the reason?
COMMENT: This also appeared to be a cover-all question in case there is reason for dismissal not covered elsewhere.
8. Did the employee voluntarily resign or abandon his or her employment?
• Yes
• No
COMMENT: Vitale says this question is not as clear-cut as it appears and unless an employee has resigned in a genuinely voluntary fashion (preferably in writing) it is a good idea to tread very carefully.
James was the editor and publisher of SmartCompany and LeadingCompany for five years. He is now the Australian Financial Review‘s companies & markets editor, and a former BRW editor.
