- DISCIPLINARY PROCESS - CASE STUDY
THE REASON THE ORGANISATION LOST ITS UNFAIR DISMISSAL CASE WITH FAIR WORK AUSTRALIA
No written warnings in Sam's personal employee files.
There were no formal notes kept in Sam's file in regards to performance reviews.
No disciplinary meetings or hearings prior to Sam's dismissal
Nil documented timelines for reviews of Sam's improvement or progress.
No performance reviews or development plans presented by employer.
Sam was dismissed from employment as there was a claim Sam had struck her manager. No investigation into Sam striking Manager - Nil Evidence.
Sam should have had formal meetings discussing her poor performances. None noted in her files.
Coaching and Mentoring should have been offered and a time line drawn up and put into place.
The manager should have notified Supervisor immediately after the alleged physical abuse.
The organisation should have kept copies of Sam's Medical certificates.
WHAT THE ORGANISATION SHOULD HAVE BEEN DOING FOR IT TO HAVE SUCCESSFULLY DEFENDED ITS POSITION AGAINST SAM'S CLAIM OF UNFAIR DISMISSAL.
Kept formal notes in Sam's file about formal performance reviews and meetings that have taken place.
Sam should have had written/formal warnings that have been issue to her.
Sam should have had meetings with Human Resource Managers for performance improvement. Including evidence of training coaching or mentoring. Follow up reviews regarding training etc.
The manager that claimed Sam had hit her should have filed a report with supervisor, not waiting until Sam had called in sick before reporting the matter.
This claim should have been fully investigated by the organisation and the outcome documented.
WHAT WOULD HAVE BEEN THE CORRECT WAY TO TERMINATE SAM IN ACCORDANCE WITH LEGAL AND ORGANISATIONAL REQUIREMENTS?
To give employees 3 written formal warnings to improve performance.
For employee to have received reasonable time and support to improve performance.
After the alleged attack on manager from same, a full investigation taken place. If evidence is clear of a crime, the investigation should be handed over to the police.
In section 17 of the Fair Trading Work Act - The organisation is required to provide an employee a notice of termination in writing.
In Sam's case, In order to terminate correctly, all processes including non-performances through to support measures and follow up action should have been documented, before termination.
RISK ANALYSIS OF THE CASE AND STRATEGIES TO MITIGATE FUTURE RISKS
Identified Risk Strategy to Mitigate Risk
Employee continually under performing
Provide on Job training, coaching and mentoring. Support for underperforming employees with time lines, opportunities for improvement. Written warnings where there is no improvement.
Compensation claim through Fair Work Australia successful
Performance management, misconduct and dismissal strategies to be implemented and communicated to entire organisation. Follow up on procedures.
Employee lodge unfair dismissal claim with Fair Work Australia
Ensure organisation has all evidence and documentation required to defend a claim.
MISCONDUCT MAY BE DEEMED TO EXIST WHERE
An employee has been previously warned about a particular behaviour.
That an employee is aware of misconduct.
Where an employee has purposely breached guidelines or challenged direct instructions from supervisors.
LIST ANY LEGISLATION THAT APPLIES TO THE SITUATION PRESENTED IN CASE STUDY
Unfair Dismissal legislation applies to most employees working in paid employment in Australia.
In this case, the employee may have physical abused another, and this might come under criminal law as "assault".
Regular dates for reviews. To monitor performance, ensuring effectiveness and employees are able to obtain support to achieve performance levels....
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