To sack or not to sack?

IR and HR issues are some of the most complex areas of running a company today, but many manufacturers continue to treat them as secondary matters. Alan Johnson reports.

THERE is an old saying that a happy workforce is a productive workforce, and that’s as true today as it was 100 years ago.

However, there are always going to be a few bad apples in the workforce who are never happy and often go out of their way to be disruptive, despite management’s best endeavours.

While some employers and managers think it’s OK to simply sack someone after a couple of warnings, Mark Goodsell, NSW Director of the Australian Industry Group (Ai Group) warns that is not necessarily the case, pointing to a constant stream of new rulings on unfair dismissal which manufacturers should be aware of.

He warns that just relying on articles in the media for up to date information on IR and HR issues is an easy trap for manufacturers to fall into.

“The problem is all the details of the case are rarely included in the article,” he told Manufacturers’ Monthly.

“For example, just recently there has been a spate of cases on whether it’s a sackable offence to tell the boss to “f__k off”, or not.

Goodsell explained that there are cases on both sides, because they are based on the individual facts.

“Manufacturers must be very cautious about reading a case in the media, such as an employee did something and that resulted in them being dismissed in a defensible way, or resulted in them being dismissed then getting their job back,” he said.

Goodsell said it is very dangerous to project a media article as a general rule on whether that kind of behaviour leads to something you can sack someone for or not sack someone.

“The basic principles are still the same. Fair Work Australia judges look at all the circumstances of the dismissal including whether someone was given a prior warning that their behaviour was not acceptable, and whether other people would have got away with that behaviour in similar circumstances without sanction,” he said.

He said these general principals against unfair dismissal are far more useful than making a list of what an employer can or can’t get away with on the basis of a particular case.

“When judges make their decisions, they have a lot of facts before them that are not always reported in the media,” he said.

Goodsell warned that there is a tendency in the media to seize on one particular aspect such as swearing or stealing and draw a general principle on which side of the line that particular behaviour is.

“It’s very difficult to do that and it’s particularly dangerous to assume that an isolated case puts a behaviour on one side of the sackable line or the other,” Goodsell said.

Formalising warnings

Goodsell said one common problem in the area of unfair dismissal and discipline issues is for companies and managers not to formalise the early stages of the discipline or performance management process.

“For example, if someone is not doing what they are told, or not doing what is expected of them, the first few conversations about that are often very informal and not recorded anywhere,” he said.

“Often managers take the view that a quick chat will fix the problem, which in many cases does. However, if it doesn’t fix the problem, the manager might need to prove he/she had that conversation at some stage.”

Goodsell explained that there are two things managers need to do very early in the piece.

“One, they need to have a record, which can be a simple diary note that they spoke to the person on the issue on such a day. Alternatively they should speak to the person with a witness present, who can corroborate that the conversation happened,” he said.

“Secondly, it is very important when managers are talking to someone about their performance or behaviour (and might want to reserve the right to dismiss them later on if it continues) that they let them know that could be the consequence.

“It needs to done far earlier than most people think.”

In many cases, he said, employees have not realised that their actions, often minor to them, could lead to them being sacked.

Goodsell admitted that sometimes managers might feel they are over-egging the pudding by pointing out that a continuation of this behaviour could be something they could be sacked about.

“But a lot of cases have fallen over because companies didn’t make it clear earlier enough in the piece, clearly, politely and calmly, that one of the consequences of continuing to do this is the company might not be able to employ them anymore. And making sure there is a little note in the diary that this was made clear,” he said.

“Managers might feel they are being harsh, but in reality they are being fair. But they should do it in an informing way, not in a threatening way.”

He said it’s important that that person knows if the problem continues they could be sacked.

“It is in their interest and yours that that’s made clear, and not just at the last warning stage,” he said.

Downsizing

Despite what some employees might think, Goodsell said the decision by employers to downsize a workforce is rarely taken lightly.

“It is not always a finite decision taken at a single point in time. It often builds up as financial information comes available and options are discussed,” he said.

However, he warned that companies can get themselves into problems when they think that if they tell their workers that it is even on the cards, they will get pessimistic and will lose their motivation, productivity will fall and will become a self-fulfilling prophecy.

“There is some truth in that, but companies shouldn’t leave it too late,” he said.

“Companies have had to stay their hand on redundancies because they haven’t properly talked to people about it and given them a proper opportunity to discuss other options.”

Goodsell said the amount of time depends on the circumstances but suggests it normally should be weeks, rather than months.

“I have seen companies give a year and a half notice, but really it’s a judgment managers must make about their relationship with their workers,” he said.

“However, managers need to be aware that if they don’t consult and leave it to the last minute and present the decision as a fait accompli then they run the risk of breeching their consultation obligations.”

Goodsell said companies need to leave enough time and space for a proper discussion of alternatives.

“It can be embarrassing if employees come up with viable alternatives that managers didn’t. Or they might not have realised that the employees were willing to work in lower-paid jobs in another part of the factory.”

Bullying 

Goodsell warned that bullying does often exist in the workforce and is an issue that can cause anguish and tragedy (not just for employees) if not acted upon.

He said there are serious misconceptions, at all levels of employment and within all types of companies, about what is and what isn’t bullying.

“Bullying is a legitimate workplace HR issue and needs to be properly managed,” he said.

However Goodsell warned that because there has been so much publicity, a lot of workplace conflicts that are not bullying attract the label of bullying because it’s a powerful label to attach to them.

“Companies should really make sure that their management and their staff fully understand what bullying is, and what it is not,” he said.

“An employee being upset by a decision that their boss made, properly and with proper business motivation, might be a natural reaction but is probably not bullying.”

He explained that bullying is repeated behaviour that is unwelcome and unfair.

“Unfortunately there are a lot of single instances and legitimate but tense interpersonal relationships in the workplace that attract the label of bullying when they are not.”

He said it is important manufacturers have policies in place so everyone knows how to deal with bullying; and educate people about how their behaviour in the workplace can affect other people unfairly.

“Some people just don’t know. What passed as management techniques before can now be classified as bullying,” he said.

“People who have those values often don’t understand that those techniques are no longer acceptable.”

Understanding, having policies and educating staff are key to keeping bullying in perspective and managing it properly.