Exercise caution when personal issues affect performance
Thursday, 7 August 2014
Employers must tread a fine line when personal problems affect a worker's performance - especially as some "personal" issues will trigger concrete obligations, says Minter Ellison senior associate Jordan Tilse.
Employers are not expected to pry and probe into a worker's personal life when managing poor performance.
When problems that aren't necessarily "work-related" come to light, however, they should be taken into consideration – especially when they trigger legal obligations, Tilse says.
An employer might assume an employee's marital problems, for example, are irrelevant when considering their performance. But if these problems significantly affect their mental health, "that's a different story".
"Sometimes the question becomes whether or not the person is depressed, and whether their performance issues are arising because of a mental illness," Tilse says. If so, a dismissal could be deemed unfair or otherwise unlawful.
"If a person is depressed, that's regarded as a disability under the discrimination legislation, and that is a protected attribute."
Similarly, if someone's performance is giving rise to a health and safety risk, "you've really got to act upon it, even if that means having a conversation that otherwise might be inappropriate".
"If you've got a situation where a person is experiencing drug or alcohol addiction, depending on what the person's role is you've got to intervene.
"The overarching obligation is to ensure the health and safety of your employees, and in many cases members of the public as well," Tilse says.
"There has also been a push from some unions to include provisions in EBAs such as family and domestic violence clauses," she adds.
If an employee is experiencing domestic violence, the employer might be legally obliged to offer them leave, for example.
Sometimes it is in an employer's power – and best interests – to help solve a worker's personal problem.
"If somebody is having difficulty reaching KPIs, or keeps having to leave early because they've got childcare responsibilities that are impacting [on performance], then it might be appropriate to have a discussion about facilitating flexible work arrangements," Tilse says by way of example.
Offering a simple adjustment to the worker's hours, even without a request on their part, could solve the problem before it escalates.
Similarly, if performance management issues come "out of the blue", the employer might want to look for indicators of bullying, even if bullying has not been raised by the worker.
The employer could, for example, check leave records in that particular department and, if there appears to be a problem, investigate before it escalates. Performance management should never be unexpected
Tilse, who is co-presenting a webinar for HR Daily on the topic of terminating poor performers, says if personal issues are having an impact on an employee's performance, and the employee does not take any steps to lift their game, employers are entitled to impose requirements on the employee.
But they must be prepared to manage performance slowly and steadily – often over an appropriate period, which typically can be a period of months rather than weeks – before resorting to dismissal.
"If the person is eligible to make an unfair dismissal claim, the tribunal does [consider] whether the dismissal was harsh and whether there were other factors at play that impacted on performance."
Tilse adds that when she acts for employers that have terminated an employee on performance grounds and are facing an unfair dismissal claim, "one of the first things we ask to see are copies of the employee's performance reviews".
In many cases, because managers have avoided having difficult conversations, this performance review will be positive. This makes it very difficult for the employer to then establish that the performance management process was legitimate, she warns.
Commencing performance management should never come as a surprise to a worker, she says.
"There should be an ongoing process of correction going on by managers prior to commencing a formal process.
"Things go off the rails in terms of commencing a formal process when people are genuinely, legitimately shocked that there is an issue."
This risk is heightened in workplaces where managers are not comfortable giving people negative feedback, Tilse says, so it follows that employers must take pains to ensure workers are given sufficient time to address performance problems.
"If you have an employee who is not performing over a number of weeks because of a personal issue, the Commission might look upon dismissing the employee as being harsh.
"But realistically, the bigger issue will arise where the employer has not given the employee a sufficient opportunity to improve.
"If you're talking about putting the employee on a performance management plan over a period of two, three, four months and you're still not seeing improvement, I don't think the expectation is that the employer can remain accommodating indefinitely."
The Fair Work Commission "would only expect an employer to be accommodating for so long", she says.
Source: HR Daily- http://www.hrdaily.com.au/nl06_news_selected.php?act=2&stream=All&selkey=3114&hlc=2&hlw=