Employment Law Experts Stephen Booth, Anna Ford and Lisa Qiu presented on the importance of HR decision makers understanding their obligations and responsibilities in regard to critical HR tasks and ensuring that appropriate procedures and protocols are followed in relation to performance management, feedback and managing terminations.

1. Performance Management, Feedback
and Managing Terminations

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6. 8.00am - 8.10am Welcome – Anna Ford
8.10am – 9.30am Guidelines for performance management
and terminations - Anna Ford
Complications and side issues – Stephen Booth
9.30am – 9.45am Morning Tea
9.45am – 11am Termination payments – Stephen Booth
The risks – Anna Ford
Settlement of claims: deeds of release – Anna Ford
10.50am – 11.00am Questions and close
Today’s Agenda

7. Upcoming Events
Commercial Law Workshop
Directors Duties: A Practical Guide to Managing Your Company
Presented by Professor Michael Adams and Peter Stewart
Tuesday, 15 October 2019
Coleman Greig Penrith Office
Directors Duties: A Practical Guide to Managing Your Company
Presented by Professor Peter Stewart
Thursday, 5 November 2019
Coleman Greig Norwest Office

8. Guidelines for performance
management and terminations

9. Just do it!

10. Guidelines for performance
management or general
conduct issues
• that is, dealing with work
performance and general conduct
• not specific incidents of behaviour
which may be misconduct
• always bear in mind the possible
end point: how will this look if it
goes to the FWC?
• be assertive but fair

11. Procedure for poor performance or
general conduct issues
• establish origin of expected standards – job descriptions, budgets, written
policies, targets, comparison to other employees
• communicate concerns
• listen to employee response and take on board if reasonable
• set clear requirements and standards for future performance, plus set
time for improvement (meeting followed by letter / email)
• consider: training, counselling, removing obstacles to performance in or
outside the business
• monitor performance against set standards and give feedback (both good
and bad) along the way

12. Procedure for poor performance or
general conduct issues
• if insufficient improvement within specified time, communicate concern,
reassert standards required, listen to response: if appropriate, set further
time for improvement and communicate possible disciplinary
consequences, including termination (meeting followed by letter/email)
• no improvement?
• arrange meeting – notify employee of agenda (support person?)
• meeting 1: communicate concerns, advise of possible consequence, ask for
response and arrange time for follow up meeting
• meeting 2: communicate outcome (follow with email / letter confirming
decision and brief reasons)

13. Warnings
• no requirement for 3 warnings
• follow employment contract and any
relevant policies for process
requirements
• Small business employers (fewer than
15 employees) - refer to Fair
Dismissal Code: 1 clear warning
• rule of thumb – valid for approx. 12
months
• doesn’t need to be in writing, but it is
helpful
• at least record in a file note
• call it a ‘WARNING’

14. Record keeping and proof
• Document! Document! Document!
• File note conversations while they
are occurring (have a note taker) or
shortly after
• Confirm your account of any
conversation in writing shortly after
• Keep record of correspondence
being delivered to employee (e.g.
get employee to sign a copy of all
letters / warnings, or email letters /
warnings and keep copy of the
email)

15. Common problems
• Trivial offence or under performance
• No prior warnings
• Long unblemished service
• No action plan, counselling or training undertaken
• Under performance is vague or unqualified – essentially
“attitude” problems
• Failure to consider extenuating circumstances
• Condoning behaviour – everyone under performs
• Dismissal letter drafted before exit interview
• Inconsistent reasoning in letter of dismissal or glowing
reference provided

16. Unfair Dismissal Case Studies
• VALID REASON BUT NO WARNING: Fichera v Thomas Warburton Pty Ltd
[2012] FWA
– Employee was a Branch Manager at a branch that had low sales and was
underperforming. It was found that the employee was incapable of
providing the necessary leadership to improve the performance of the
branch and this was a valid reason for dismissal.
– BUT the employer failed to follow its own performance management
process and warn the employee that his employment was at risk. This
rendered the dismissal unfair.
• VALID REASON BUT NO WARNING: Dean v Sybecca Pty Ltd t/as Sleepy
Lagoon Hotel [2010]
– Employee was dismissed for performance and conduct issues. Employee
was never expressly warned that his employment was in jeopardy.
– Employer was required to openly communicate with the employee
about their concerns and provide an opportunity for improvement, but
didn’t. The termination was held to be harsh, unjust and unreasonable.

17. Unfair Dismissal Case Studies cont…
• PRE-PREPARED SCRIPTS / WARNINGS: Joshi v Panasonic Australia Pty Ltd
[2010]
– Employee was dismissed for poor performance. Employer had pre-
prepared a script regarding warnings to be given, before the
disciplinary meetings took place. This suggested that the meetings
had a pre-determined outcome
– It was concluded that the meetings were simply a “mechanical
process” that did not genuinely afford the employee an opportunity
to respond or affect the outcome of the meeting. It was held that
there was no valid reason for the dismissal and the termination was
unfair.

18. Types of dismissal
• Summary dismissal (without notice)
– serious misconduct – onus of proof
on employer to prove it was justified
• Serious misconduct (defined in the
Fair Work Act 2009) – theft, fraud,
assault, being intoxicated at work,
and refusing to carry out a lawful
and reasonable instruction
consistent with the employee’s
contract of employment
• Ordinary dismissal (with notice) –
onus of proof on employee to prove
it wasn’t justified / fair

19. Serious Misconduct
• Investigation required? Internal vs External
• Procedural fairness
• Carry out promptly and openly
• Focus on first-hand, factual information (do not rely on
unsubstantiated assertions, assumptions, impressions or hearsay)
• Do you need to disclose names of those who provided information?
Maintaining secrecy may limit a person’s ability to respond - so issues
of fair process may arise!
• Support person?
• The ability to lawfully direct a person to participate in the process

20. Alternatives to dismissal
• Refuse overtime, promotion, pay
rise, bonus
• Demotion
• Period of suspension without pay
• Transfer to other worksite /
location
• Retrain / counsel / monitor closely

21. Complications and side issues

22. Other issues
• Confidential Information
• Post-employment restraints of trade
(non-competition, non-solicitation)
• Company property (car, laptop, iPad,
mobile, office keys) – do you have a
departure checklist?
• Computer and email system - access
codes, passwords

23. References
• Separation Certificate (provide
promptly after termination)
• Statement of Service
• Beware of untrue statements

24. Personal leave or workers compensation
• medical certificate: “X has a medical condition” or “X is stressed and
anxious”
• playing a straight bat
• take medical evidence at face value, unless clear problems with it
• respond patiently, sympathetically, but firmly, but taking account of the
circumstances
• re-affirm the process and what needs to happen
• poor responses:
- frank disbelief (unless there’s good evidence otherwise)
- advertising the job or emptying out the desk,
- repossessing the car or giving the car spot away
• do not play games, even if the employee does

25. Reasonable management action
• defence to allegations of bullying or
workers compensation claims
• is your performance management
process reasonable action
undertaken in a reasonable way?
• will the insurer or a tribunal see it
that way?
• should be objectively reasonable,
and not irrational or absurd
• doesn’t have to be perfect: may be
reasonable even if it could be “more
reasonable”

26. Reasonable management action: examples
• 20 second shouting match?
• disagreement with management decision: “I was professionally
disrespected”?
• direct and probing questions?
• should be objectively reasonable, and not irrational or absurd
• doesn’t have to be perfect: may be reasonable even if it could be “more
reasonable”

27. 457 and other visas
• Notify the Department of
Immigration/Border
Protection/Home
Affairs/whatever?
• Termination of employment may
be “harsher” on a migrant worker,
compared to an Australian citizen.
This could have an impact on an
unfair dismissal claim.

28. Payments

29. Notice
• How much notice is required?
– Summary dismissal/serious
misconduct – no notice
required
– Check the employee’s contract
and any relevant award
– NES

30. Notice
then increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of
continuous service with the employer at the end of the day the notice is given.
Period
Employee's period of continuous service with the employer
at the end of the day the notice is given
Period
1 Not more than 1 year 1 week
2 More than 1 year but not more than 3 years 2 weeks
3 More than 3 years but not more than 5 years 3 weeks
4 More than 5 years 4 weeks

31. Notice
• What if the contract is silent on notice?
• risk of “reasonable notice”: depends on length of service, nature of
the work, seniority of the position, qualifications and skills required,
age, salary level, prospects of finding new employment, any
sacrifices the employee made to take and keep the position
• Rarely more than 2 years, frequently less than one year
• Quinn v Jack Chia (Aust) Ltd [1992] 1 VR 567
• Ma v Expeditors International Pty Ltd [2014] NSWSC 859

32. Notice
• Pay in lieu or work through?
– Was the departure on good
terms?
– Pros and cons of keeping the
employee on during the notice
period?
– Handover?
– Partial payment in lieu?
– Restrict access to computer
systems/information?

33. Other payments
• Annual leave
• LSL
• Bonus?

34. The Risks

35. Unfair dismissal
proceedings
• Termination was harsh, unjust or
unreasonable
• Minimum length of service
– 12 months for small business
employer
– 6 months for others
• What if they’re in their
probationary period?
• High income threshold, currently
$148,700

36. Unfair dismissal
proceedings
• 2 main elements for an
employer to satisfy
– Reason
– Procedure
• FWC procedure
• Remedies
– Reinstatement
– Compensation

37. General Protection / Adverse Action proceedings
• Protects employees from being treated adversely eg demoted, dismissed,
victimised, because of a “protected” reason such as exercising a workplace
right
• Workplace rights include the right to query or complain about work
conditions or entitlements
• Can also be made on the basis that there was some sort of discriminatory
treatment eg age, race, religion, disability, sex

38. Discrimination Proceedings
• Sex discrimination (includes discrimination based on being a man
or woman, or on characteristics attributed to sex eg pregnancy,
breast feeding. Can also include aspects of sexual orientation,
gender identity discrimination et cetera)
• Age discrimination (includes discrimination based on
characteristics attributed to elderly people eg frail, slow learners,
inefficient)
• Disability Discrimination (includes physical and mental disabilities.
It is a requirement that employers make “reasonable
adjustments” for people with disabilities, unless the employer can
prove “unjustifiable hardship”)

39. Common Law Proceedings
• Breach of contract
– Is there scope for an employee to argue that a term of their contract
was breached?
– Have you made it a contractual obligation (by including in your
contracts, or policies) that the employer do something eg it will
prevent bullying or harassment, or that it will provide 3 written
warnings before terminating?
– Generally used by executive employees who may be barred from
making an unfair dismissal claim

40. Settlement of claims:
Deeds of Release

41. Settlement of claims:
Deeds of Release
• When is a deed appropriate?
• What does it protect you against?
What about superannuation and
workers comp?
• How much do you have to pay to an
employee in exchange for them
signing it?
• How much time do you have to give
an employee to consider it?

42. ???

43. Thank you for attending!
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