Recently I received such a call from one of our regular clients. They had an employee who was simply not performing, was within their probation period and that several informal conversations had taken place between the Office Manager and the employee clearly outlining where improvements needed to be made. I proceeded to advise them on how to terminate the employment agreement when, just for good measure, they decided to throw in a little bit of extra information that made this a curly situation…. “Oh by the way, they lodged a WorkCover claim a couple of weeks ago, that shouldn’t change anything right?”
The employee commenced with our client three months ago in an administrative role in accounts. All seemed well until a range of data entry errors started occurring, which, if left unchecked, would have led to some serious financial implications for our client. The Manager addressed these errors on each occasion with the employee, however did not document the discussions as she was still within her probation period and believed it to be unnnecessary.
Three weeks ago, the employee tripped over a cord in the office and smacked her nose on a desk. She was immediately taken to seek medical treatment. The doctor found no major damage and gave a full clearance for the employee to return to work the same day. A week later, the employee saw her family doctor for an unrelated issue but mentioned her nose was still a little sore from the fall. Her doctor proceeded to send her for a CT scan which showed that there was a slight deviation in her nose and surgery was suggested.
The employee returned to work the next day and asked to fill in a WorkCover claim form as was her right. The claim then went to our client’s insurer for review as per usual process. A week later, performance issues arose again with the same errors being repeated despite our client providing additional training to improve her skill set and work output and the decision was made to terminate her employment.
Do We Have A Problem Here?
So, what is the problem? If our client were to go ahead and terminate the employee for non-performance, there is nothing documented and therefore no supporting evidence as to the grounds for termination. Although an unfair dismissal could not be lodged by the employee, an adverse action claim could! The employee could lodge a claim stating she was terminated because she exercised her workplace right to submit a WorkCover claim. Without documentation regarding the performance issues and the steps taken to improve, she may have a solid case and it would simply come down to being a situation of "he said, she said". In an adverse action claim, the onus is on the employer to prove that they didn’t terminate her for exercising the workplace right.
· There was clearly a serious concern about the employee’s ability to perform the tasks for which she was employed.
· Several informal discussions took place to address these concerns, however nothing was documented or formalised. Additional training and support was provided to the employee.
· The employee didn’t lodge a WorkCover claim until she was advised she needed an operation – a week after the event.
· The injury and potential WorkCover claim did not contribute to the decision to terminate the employee, however there is no documentation to prove that this is the case.
· To lodge an adverse action or general protections claim under the Fair Work Act, employees simply need to allege that they were ‘adversely affected’ by a management decision made because of their workplace rights
· The damages an employee is able to seek to claim by lodging an adverse action claim is uncapped and ‘pain and suffering’ can be factors put forward by the employee (unlike in an unfair dismissal case).
We advised our client to again address the performance issues with the employee, however this time in a formalised setting, and introduce a performance improvement plan (PIP). The PIP needed to clearly outline the areas for improvement, when the improvement needed to occur by, what assistance (if any) the employer would provide and what the outcome could be if an immediate improvement was not observed. A weekly meeting was introduced to evaluate her performance for a period of six weeks. The employee failed to perform at the desired standard and she was terminated within her probation period. Although there is still a risk of the employee lodging an adverse action claim, there is clear documentation of the performance issue which would assist our client in disputing the claim.
1. If there is a performance issue, even when an employee is still within their probation period, all discussions should be documented. The meetings and discussions don’t necessarily need to be too formal but notes that the discussions, including dates and times should be placed in the employees file
2. All risks should be considered and professional HR advice sought prior to having any discussions with an employee and prior to terminations taking place
If you need assistance in navigating a challenging employment situation, please contact us via email or call us on 9590 0844 to discuss.