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...
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:
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  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.
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.
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  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.