Insubordination in the workplace is when an employee refuses to obey or comply with orders and requests of their employer. Insubordination can cause major problems for any business, however small businesses can be particularly at risk. This is because small businesses have fewer employees and rely more on each employee to perform and act as expected. Insubordination can quickly spread among employees. If other employees see one worker refusing to follow orders without consequence they might start acting in a similar way. This means it is important for small businesses to deal with insubordinate employees quickly and fairly. This guide can help you to fairly and quickly deal with insubordinate employees.
Dealing With Insubordination
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1. Talk with the Employee
The first step in dealing with an insubordinate employee should be to have a discussion with them. This initial discussion is often seen as an informal and unnecessary step. However this initial discussion could lead to a more formal performance management process. This makes the discussion an important first step in dealing with insubordination. You should offer the worker to bring a support person to the meeting. The support person can provide the employee with emotional and practical support. However, a support person cannot advocate on an employees behalf. You should also keep a written record of the conversation which both parties should sign to confirm what was discussed and agreed.
2. Performance Management
If employee insubordination continues after the initial discussion, you can enter into a formal performance management process. You should have another meeting with the employee and explain why you are still unhappy with their performance or conduct.
You can ask the employee to enter into a performance agreement. This agreement will set out concerns with the employees conduct and performance. It will also set out the required performance or conduct improvements and how they should be achieved. The intention is for the employee and employer to come to a mutual agreement about how the performance or conduct needs to change.
You can also ask the employee to sign a performance improvement plan. The plan is intended to support the employee to achieve the changes set out in the performance agreement. This plan should include strategies the employee can use to improve their performance. The plan should also set out a series of performance review dates. On these dates, the employer and employee should meet again to discuss the employees progress in meeting the requirements of the performance plan and agreement.
The Australian Fair Work Ombudsman provides a number of templates which can be useful when managing employee performance and conduct. These include template performance agreements and performance plans. Using these templates can help your business show the actions that they have taken to help the employee improve. This could be particularly important if you end up dismissing the employee and need to defend this dismissal in front of the Fair Work Commission.
3. Formal Warning
If the employee’s performance or conduct still doesn’t improve, the next step is to issue a formal warning letter. This warning should clearly explain the problems with the employee’s performance and conduct. It should also set clear expectations for how their conduct needs to change. Additionally, the letter needs to clearly state what consequences the employee might face if they don’t improve. After issuing a formal warning you need to give the employee reasonable time to demonstrate improvement in their conduct or performance. There are no specific rules about how many warnings need to be given or how long the employee should be given to improve so it’s a good idea to seek advice from an employment lawyer if you reach this stage.
4. Notice of Termination
If after following all the steps above the employee’s performance or conduct has still not improved, you might decide that you need to let them go. If you decide to terminate employment, you need to issue a formal letter of termination. There are three ways to deliver a letter of termination to an employee:
- hand it to them in person;
- leave it at their last known address; or
- send it to their last known address by pre-paid post.
You will need to give the employee appropriate notice of their termination. The amount of notice that you need to give will depend on any relevant terms in their employment contract and the National Employment Standard. More information about minimum notice periods is available from the Fair Work Ombudsman.
5. Summary Dismissal
Summary dismissal is the immediate termination of an employee without notice or warning. To summarily dismiss an employee, their misconduct must be so serious that it would not be reasonable to continue their employment. Common reasons for summary dismissal include theft, fraud and assault. However, insubordination can be serious misconduct attracting summary dismissal in certain circumstances.
The Fair Work Regulations 2009 (Cth) provide that serious misconduct can include refusing to carry out lawful and reasonable instructions of an employer if the instructions are consistent with their employment contract. It can be complicated to work out whether summary dismissal is reasonable and justified. If you summarily dismiss an employee without justification, they could bring an unfair dismissal claim against your business. If they are successful you might have to pay them compensation or reinstate them in their employment. Because of this, if you are considering terminating an employee for insubordination without warning or notice, its a good idea to get advice from an employment lawyer. They can help you to work out whether summary dismissal is justified in the circumstances.
Conclusion
Insubordination of employees can be a major problem for small businesses. Business rely on their employees to carry out tasks as instructed. Additionally, unchecked insubordination can quickly spread to other employees. Because of this, it is important to deal with employees who don’t follow reasonable instructions. Follow the steps in this guide to make sure.
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