Resources: E-updates

Key Takeaways from our Webinar

E-updates
|

Managing Workplace Behaviour: "You Get What You Tolerate"

In our August webinar, our Managing Director and Principal, Athena Koelmeyer, discussed the challenges faced by modern employers when managing workplace behaviour. In that webinar, Athena examined a number of recent unfair dismissal decisions of the Fair Work Commission which provide some good guidance for employers.

In our August webinar, our Managing Director and Principal, Athena Koelmeyer, discussed the challenges faced by modern employers when managing workplace behaviour. In that webinar, Athena examined a number of recent unfair dismissal decisions of the Fair Work Commission (FWC) which provide some good guidance for employers.


For those who missed the webinar, below are three key takeaways:


1. Understand the difference between behaviour, performance and misconduct


It is crucial that managers and HR understand the differences between behaviour, performance and misconduct, and that they correctly identify the problem before taking any further action.


Poor behaviour can include a variety of things such as an employee being uncooperative or unprofessional, acting in a way that is passive aggressive or creates low-level tension in the workplace, or displaying poor email or online etiquette with customers or colleagues.


Poor performance is generally defined as a failure to achieve certain standards or output, usually measured against pre-existing goals or responsibilities that are relevant to an employee’s position, such as Key Performance Indicators (or KPIs) or an employee’s Position Description.


Misconduct most often concerns an act (or acts) committed by an employee that is unacceptable and calls for some corrective disciplinary action.


In Zirilli v StarTrack Express Pty Limited [2019] FWC 3557, an employer was found to have unfairly dismissed an employee because it incorrectly identified his poor performance as a matter of misconduct. The FWC found that the employee was denied an opportunity to improve his poor performance prior to his dismissal, and awarded the employee $17,504.79 in compensation.

2. Realise the importance of developing and implementing a Code of Conduct


Developing a Code of Conduct that sets out the employer’s values and culture will go far in minimising the risk of employee misbehaviour and enabling employers to take action where behaviour does not meet the standards required.


Employers should consider the standards of behaviour that they will expect from employees and set this out in a clear and unambiguous document, along with the possible consequences of non-compliance. A strong Code of Conduct, along with a leadership team that abides by and actively demonstrates its standards, will ensure that every individual employee knows what is expected of them, regardless of their position within the organisation.


A Code of Conduct should also serve to remind employees that they are representatives of the employer and their behaviour will be seen as a reflection of the employer, including when it comes to activity on social media.

 

3. Act swiftly and fairly when poor behaviour arises


Poor behaviour can have toxic consequences for an organisation if it is not dealt with in a prompt and fair manner. It can lead to more serious issues like bullying and workplace gossip, creating risks to the health and safety of other employees and the workplace generally.


In Meredith v Chad Group Australia Pty Ltd [2020] FWC 1467, the FWC found that the employer had tolerated the dismissed employee’s unacceptable behaviour for so long that it had resulted in a young employee fearing for their safety and ultimately resigning from their job. It had also exposed other employees to unnecessary and unacceptable abuse. The employer only dismissed the employee when he directed his unacceptable behaviour towards a director, and on that occasion, the dismissal was so devoid of procedural fairness that it made the dismissal unfair.


When an employer becomes aware of an employee behaving poorly, it should take appropriate steps to address and rectify the poor behaviour and remind all employees of the importance of upholding the employer’s standards of behaviour.


In many instances, a simple reminder to employees as a group will be effective. However, where an employee refuses to adjust their behaviour in the workplace, managers and HR staff should not hesitate to address these issues directly with the employee, including in the form of disciplinary action if necessary.

Similar articles

Commission orders employer to pay compensation as a result of its procedurally unfair disciplinary process

Procedurally disastrous

When investigating allegations of misconduct against an employee in the workplace, employers must ensure that any ensuing disciplinary process is kept distinct from and separate to from the investigation.

Read more...

Changes to the Fair Work Act and Sex Discrimination Act to commence shortly

NEWS UPDATE

On 2 September 2021, the Federal Parliament passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the Bill).

Read more...

Commission rejects constructive dismissal claim after finding performance review process did not force employee to resign

Full force denied

For an employee to access the unfair dismissal jurisdiction, they must be “dismissed” from their employment by the employer. In some instances, a resignation can be a “dismissal”, when an employee is forced to resign due to the employer’s conduct. This is referred to as a “constructive dismissal”.

Read more...

Annualised salary arrangements – one year on

Special Edition E-update

Given the rapidly changing employment landscape last year, it was easy for employers to forget that in March 2020, some modern awards were varied to include provisions relating to annualised wage arrangements.

Read more...

Workplace Relations Review

Cases and Legislation December 2020

In response to the COVID-19 pandemic, the Full Bench of the Fair Work Commission amended the Clerks – Private Sector Award 2020 in March 2020 to include temporary measures to facilitate working from home arrangements.

Read more...

Workplace Relations Review

Cases and Legislation November 2020

The Federal Circuit Court of Australia has rejected an employee’s claim that she was discriminated against because of her pregnancy and potential pregnancy.

Read more...

Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Signup to receive the latest industry updates with commentary from the Workplace Law team direct to you inbox.