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 contexts; 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, and:
- 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 four 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 cleanup, 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 a 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.
This article originally appeared on NB Lawyers, the Lawyers for Employers, and has been republished here with permission.
Jonathan Mamaril is a Director with NB Lawyers, the Lawyers for Employers, leading the Employment Law and Commercial Law teams. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training to help them avoid headaches in the first place; and when a problem does occur, to deal with it properly so it doesn’t become a larger, more litigious problem.