Terminating an under-performing employee is not a new concept. However, doing this can result in a variety of issues if the employee decides to pursue a claim for unfair dismissal. Here, I’ll provide some insight on the process, and how you can make sure you comply with national laws and terminate your employees legally.
Even though you may follow a strict performance management process, when the time for termination comes, problems can still arise. The problem is that during the performance management process, including issuing warning letters and so forth, the employees in these cases are putting in claims for compensation for stress and the like, relating to bullying and harassment.
The general allegation you see is that the employee has been bullied and that the employer is just looking for an excuse to terminate. Whether this is a result of the employer not being ‘bothered’ to do something about it, or to protect the employee who is doing the bullying – it is more than just a bad look. Now, I should make it clear, that these claims are not always made up by the employee and there a lots of situations where there are valid bullying claims, however from an employer’s perspective the claim of bullying may be nothing more than attempt to circumvent the performance management process. What happens is that the employee goes on either sick leave, or makes a claim for workers compensation due to stress which effectively stops the process because the employee is longer at work.
If this happens, the employer needs to be very careful if it intends to continue with the dismissal process so that it does not fall foul of both the Fair Work Act and the relevant State workers compensation legislation. There is a mine field of issues that could cause an adverse action or discrimination action to be brought if not done the right way. Make sure you have policies in place to address instances of workplace bullying and discrimination, and follow these if any reports of workplace bullying or discrimination are made.
Furthermore, if a spurious claim for workers compensation is made, it is vital that employers take a pro-active approach with Insurers immediately, so that the Insurer does not refuse to accept the claim because of lack of information. While terminating an employee needs to be done in a fair and sensitive way, you also need to ensure your business is protected if any false claims are made.
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