1. DIFFICULT EMPLOYEES
Tips and Traps of Management
DIFFICULT EMPLOYEES
Tips and Traps of Management
Chairperson:
Nick Duggal, Partner
Presenter:
Liz Aitken, Associate

2. PERFORMANCE
MANAGEMENT
ILLNESS OR INJURY

3. • Termination of employment (and constructive
dismissal)Unfair Dismissal
• Adverse action on basis of protected
attributed or exercise of workplace rightGeneral Protections
• Direct / indirect discrimination by reason of a
protected attribute
• Vicarious Liability
Discrimination
• OHS Act 2004 (Vic)
• Fair Work Act 2009 (Cth)
Workplace Bullying
• Fundamental terms of employment
• Trust and confidence
Breach of contract
• Compensable work-related injury
Workers
Compensation

4. Performance managementPerformance management

5. Valid reason
Notification of the reason
Opportunity to respond
Opportunity to improve
Previous warning
Opportunity to have a support person
Any other relevant matters
‘A fair go all round’‘A fair go all round’

6. Best practiceBest practice
1. Initial verbal counselling
2. Informal process
3. Formal process
Fundamental principle:
“fair go all round”

7. Procedural obligationsProcedural obligations
• Contract
• Enterprise Agreement
• Award
• Workplace policies
Mawkes v State of Victoria

8. Refer to meeting and what was discussed:
1. any previous issues/counselling re performance
2. current concern how does this link to previous
performance issues?
3. decision re disciplinary action e.g. Formal Warning
4. indicate potential consequences of failure to improve
5. invite employee to contact you if further directions or
support required
Documenting itDocumenting it

9. Unclear TargetsUnclear Targets
No:
- recorded requirements
- clarity for employee
- measure of performance
- assessment of capacity to perform
role

10. InconsistencyInconsistency
• All employees to be treated
the same
• Apply policies / procedures
consistently
Fagan v Department of
Human Services

11. No fixed time or number
Consider:
1. severity of underperformance
2. level of required performance
3. impact
4. previous warnings
WarningsWarnings

12. Lim v Comcare [2016] FCA
‘Reasonable management action’‘Reasonable management action’

13. 1. Clear KPIs
2. Respond promptly
3. Be consistent
4. Comply with internal/external procedures
5. Document it
6. Continue monitoring

14. ILL OR INJURED WORKERSILL OR INJURED WORKERS

15. • Take reasonable steps to eliminate or mitigate
risk to health and safetyOHS
• Adverse action on basis of protected
attributed or exercise of workplace rightGeneral Protections
• Direct / indirect discrimination by reason of a
protected attribute
• Vicarious Liability
Discrimination
• Termination of employment (and constructive
dismissal)Unfair Dismissal
• OHS Act 2004 (Vic)
• Fair Work Act 2009 (Cth)
Workplace Bullying
• Fundamental terms of employment
• Trust and confidence
Breach of contract
• Compensable work-related injury
Workers
Compensation

16. Managing ill or injured workerManaging ill or injured worker
1. Inherent requirements
2. Reasonable adjustments
3. Unjustifiable hardship

17. “An employer must not dismiss an employee because the
employee is temporarily absent from work because of illness
or injury.”
Section 352, Fair Work Act 2009
UNLESS unpaid leave for more than 3 months in one
period or for more than 12 weeks in total in a 12 month
period

18. • 40% of sick days taken on a Monday

19. Notice & EvidenceNotice & Evidence
• Notice “as soon as practicable”
• Evidence to “satisfy a reasonable person”
• Don’t play doctor
Marshall v Commonwealth

20. Independent Medical ExaminationIndependent Medical Examination
• ‘Reasonable and lawful direction’
• Express requirement? Contract / other instrument
• When?
− identified risk of injury
− OHS concern
• Inform employee of reasons
• Focus on occupational
requirements

21. Grant v BHP Cole [2014] FWCFB
• Lack of medical information
• Genuine OHS concerns
• Reasonable direction to attend IME
• Repeated refusal to attend
"In the circumstances, it is entirely reasonable that the Respondent would have at
least sought further advice and information on the Applicant’s fitness to ensure
that it was not exposing the Applicant, or others, to unacceptable risk from any
limitation arising from the injury or by virtue of his lengthy absence."
Failure to comply with directionFailure to comply with direction

22. • Compare: Cole v PQ Australia [2016] FWC
• One day off
• Medical certificate provided
• Informed employer suffering depression
• Employer directed attendance at IME refused + fired
• Unfair dismissal found:
“no reasonable basis to assume that the employee had any illness that related to
his capacity to perform the inherent requirements of his job”

23. • Employees must provide notice of absences
• Medical evidence to satisfy a reasonable person
• Obtain further information if required
• Consider the inherent requirements
• Reasonable adjustments – temporary or permanent

24. Wrap upWrap up
Common language of management:
- ‘fair go all round’
- ‘reasonable management action’
- ‘reasonable and lawful direction’
- ‘reasonable adjustments’

26. Contact UsContact Us
Nicholas Duggal
Partner
TressCox Lawyers
T: 03 9602 9744
E: nicholas_duggal@tresscox.com.au
Elizabeth Aitken
Associate
TressCox Lawyers
T: 03 9602 9708
E: elizabeth_aitken@tresscox.com.au

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