Managing performance in the new world post pandemic and vaccination requirements will be a challenge. There is a lot of commentary about the “great resignation”, work from home flexibility, recruitment and retention. So when managing performance is raised in an organisation we need to look at it all from this context.
The Context
Performance management should be looked at from a different set of context here is an anecdotal example we talked to our clients who are mostly businesses in industries such as local government (councils), manufacturing, health, engineering, mining, hospitality, technology and professional services.
- There has been a 30% overall increase in unfair dismissal claims
- General Protections claims have doubled
- Workplace complaints have doubled since January 2022
The causes are far reaching and variable however here are some examples:
- Key employees and in particular managers leaving the business and being replaced too slowly
- Lack of resources (both personnel and physical assets) leading to teams overworking and resignations and claims as a result
- Claims of bullying and to a growing larger extent upward bullying due to growing pressures and difficulties with remote management.
So what can Employers do?
Here are 4 actions to take right now.
Action 1 – Performance Management Training
Performance management training and workshops from a legal centric point of view can produce excellent results in particular with management and leadership teams. The performance management sessions will of course set out the legal issues surrounding:
- Unfair dismissal claims
- General Protections claims
- Discrimination disputes and
- Workers compensation claims
It will also point out the personal liability (accessorial liability) and how it is important to understand that poor performance management can compound the problems which may lead to liability to the company as well as the manager or supervisor personally.
Case studies are a good way to demonstrate this, and all HR Teams and organisations should strongly consider external training from a specialist employment law firm as they will be able to demonstrate the seriousness much more easily to managers and supervisors and even board members and executive teams.
Action 2 – Legal-centric Policy and Contract Reviews
This is a good opportunity to take stock of the current policies in place. Especially if your organisation has several policies that overlap. A legal-centric review will showcase the following:
- Inconsistencies and problematic areas
- Policies or clauses which may provide a higher legal obligation than is actually required
- A clean up, rollout and training on new policies (and to a lesser extent contracts) can lead to the mitigation of liability and risk
Keep in mind that courts and tribunals such as the Fair Work Commission have handed down many previous general protections and unfair dismissal cases which have made negative comments about organisations that have not followed their own policies.
Action 3 – If it might become a General Protections Claim obtain Legal Advice Immediately
Due to the risky nature of general protections claims in particular the following:
- Reverse onus of proof
- Can be filed while still employed
- Can proceed to the Federal Court and Federal Circuit and Family Court of Australia which means following the rules of evidence
- Individuals involved can be sued personally
- Pecuniary penalties
- Compensation and damages
General protections claims are the most dangerous of the potential claims in terms of both liability and risk.
HR Teams and organisations are highly recommended to obtain legal advice if the matter potentially could become a general protections claim or they receive a general protections claim.
Action 4 – Workforce Planning
Considering the difficulties regarding recruitment and retention, workforce planning should not be hindered by legal risk however it should be taken into account.
Undertaking the above should form part of the workforce planning strategy.
Restructures (if any) should be done in an appropriate way with particular focus on any relevant consultation provisions.
Also keep in mind obligations regarding workplace flexibility. There are usually consultation obligations and obligations to consider any requests.
You should also expect that there are potential other claims that may make their way through when it comes to workforce planning such as underpayment of wages claims, workplace bullying complaints, workers compensation claims and upward bullying.
NB Lawyers are the Lawyers for Employers and we can assist with all of the above. Feel free to get in contact with Jonathan Mamaril Director on [email protected] or scan the QR Code below to organise a time for a chat.
Reach out via [email protected] or +61 (07) 3876 5111 to book an appointment.
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Written By
Director
NB Lawyers – Lawyers for Employers
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.
