Managing Risk in Performance

1
Managing Risk in Performance And Discipline
Procedures
Ross Jackson Partner Workplace
Services Maddocks ross.jackson_at_maddocks.com.au Ka
trina Raymond Senior Associate Workplace
Services Maddocks katrina.raymond_at_maddocks.com.au

2
PART A The Keys to Managing Risk

• Its about managing people!
• The 3D Rule
• Policy (in contract, EBA, HR Policy Manual)
• Document implementation
• Document policy maintenance
• Consistency, cogency, transparency if it is in
  your head, put it on the table for response!

3
Compliance/Risk Areas

• The Contract
• express/implied
• oral terms
• written terms including policies
  expressly/impliedly applied to contract
• governs wrongful dismissals
• may affect unfair dismissals
• breach leads to claim for damages
• the goose and the gander re policies

4
Compliance/Risk Areas continue ...

• the duty to be good and considerate to employees
  i.e. no blind policy application
• (Burazin V Blacktown City Guardian Pty Ltd 1996
  142 ALR 144)
• (Department of Justice v Hepburn 1999 FCA 114)

5
Compliance/Risk Areas continued ...

• Awards
• TCR/dismissal clauses (comprehensive
  non-Victorian State Awards only)
• Dispute resolution /grievance clauses
• potential for derailment of discipline process
• Penalties for breach

6
Compliance/Risk Areas continued ...

• EBAs
• s 170LW AIRC has broad private arbitral powers
  so may end up reviewing application of process
• grievance procedures - try to exclude
  comprehensive discipline/performance management
  procedures from general grievance/dispute
  resolution clauses

7
Compliance/Risk Areas continued ...

• Legislation
• Unfair dismissals
• Unlawful dismissals
• Exclusions
• State and Federal anti-discrimination legislation
  i.e. is the discipline/performance management
  directly or indirectly discriminatory on the
  basis of age, disability, gender, status as a
  parent, race, physical appearance etc?

8
Compliance/Risk Areas continued ...

• S298 Workplace Relations Act
• Management and Discipline as stress - including
  bullying OHS
• Public Sector Disciplinary Tribunals - ultra
  vires if act outside scope of legislation, or
  without applying natural justice

9
Legislation Unfair Dismissal

• Valid reason compared with contract
• Federal fair go all round
• Whether there was a valid reason for the
  termination related to the capacity or conduct of
  the employee or to the operational requirements
  of the employers undertaking, establishment or
  service

10
Legislation cont ...

• Whether the employee was notified of that reason
• Whether the employee was given an opportunity to
  respond to any reason related to the capacity or
  conduct of the employee
• if the termination related to unsatisfactory
  performance by the employee - whether the
  employee had been warned about the unsatisfactory
  performance before the termination

11
Legislation cont ...

• s170CG(3)(da)
• the degree to which the size of the employers
  undertaking, establishment or service would be
  likely to impact on the procedures followed in
  effecting the termination and
• s170CG(3)(db)
• the degree to which the absence of dedicated
  human resource management specialists or
  expertise in the undertaking, establishment or
  service would be likely to impact on the
  procedures followed in effecting the termination

12
Having found the rules, stick to them!!

• Follow the process eg. contractual obligations
  regarding performance management, internal
  performance/discipline policy
• The 3D rule
• Consistency, cogency, transparency
• Review/consult stakeholders about the
  system/policy and how it is working

13
Performance / Misconduct common systemic
failures

• Lack of a system which, like any other element of
  quality assurance, is known and understood by
  those affected by it is owned by them in the
  sense that they know that they can provide input
  and is comprehensive without being inflexible or
  prescriptive
• Lack of a consistent and documented application
  of that system i.e. the manager who runs his/her
  own show, or the but this is different
  situation

14
Performance Dismissals

• If you have a problem, say so - dont be afraid
  to manage your people
• follow the three Ws principal - tell them what
  the problem is, where they are at and where they
  need to be, and by when and
• follow the three D rule - document, document,
  document!
• avoid the contradictory document trail i.e. the
  killer glowing performance appraisal

15
Misconduct - Regulation 30CA(1)(Federal)

• Follow the rules
• No assumptions
• Gather the evidence
• Put the evidence
• Obtain response
• Consider/follow issues raised
• Deliver decision

16
Misconduct - Regulation 30CA(1)(Federal) cont

• Then invite employee to show why shouldnt be
  dismissed
• Consider
• Then and only then, dismiss
• Double check for legislative compliance and
  proportionality when you stand back and sniff

17
PART B Katrina Raymond

• Case Studies
• Department of Justice -v- Hepburn, (1999 FCA 114)
• Dismissal for breach of regulations
• Reason not valid because failed to take into
  account reason for the breach

18

• Schliebs v Ricegrowers Co-operative Limited - 31
  January 2001 AIRC (NSW) (PR 900 786)
• Blind application of policy
• Dismissal not for valid reason because failed
  to take into account circumstances of the
  particular case

19

• Agnew Ors v Nationwide News Limited 11
  February 2003 AIRC (NSW) (PR 927597)
• Breach of alcohol policy
• Dismissal for a valid reason but harsh, unjust
  unreasonable taking into account employees
  employment history and expectation they would
  receive a warning

20

• Matthew Paul Harvey v Qantas Airways Limited
  AIRC 20 January 2003 (PR 926844)
• Dismissal for breach of various policies was a
  valid reason and fair.

21

• Smith v Grand Hyatt Hotel AIRC 10 May 2001 (PR
  904136)
• Timeliness, confidentiality and impartiality in
  implementing disciplinary policy is everything.

22

• Wendy Bann v Sunshine Coast Newspaper Company Pty
  Limited AIRC 30 July 2003 (PR 935122)
• Harsh management style does not necessarily
  amount to bullying
• Concerns about management style and future of
  employee to change style after counselling will
  be a valid reason for termination

23
PART C Compensation/Remuneration

• Payable upon termination

24
Unfair Dismissal

• Remuneration thresh-hold
• Non-award 85,400
• Compensation limit
• WRA - 42,700 or 6 months

25

• Notice
• S.170CM WRA
• Schedule 1A WRA
• Employees over 45 years of age and with at least
  2 years continuous service receive an additional
  weeks notice

26

• Severance
• No common law right
• From Federal Award or contract (or policy)
• TCR table
• Severance pay is in addition to notice
• Unfair dismissal
• Commission has started to hold there may be an
  implied right to severance

27
Ross Jackson Partner Workplace
Services Maddocks ross.jackson_at_maddocks.com.au Ka
trina Raymond Senior Associate Workplace
Services Maddocks katrina.raymond_at_maddocks.com.au