Hello everyone and welcome to this episode of Employsure Essentials. Today we’re going to be having a chat with Tariq Nasri one of our Senior Advisers here at Employsure and we’re going to cover off some of the complexities of unfair dismissals. We are seeing more and more claims in the Fair Work Commission from employees and unfortunately it seems to be the process employers are using in terminating an employee that’s bringing them unstuck today Tariq is going to give you some
tips on how you can manage this process regardless of the type of business or the industry you’re in so let’s get into it Hi Tariq thanks for coming today
Tariq: No, thank you for having me.
Scott: So today we’re gonna have a bit of a chat about unfair dismissals and some of the things that can lead to that and I think the big piece is employers getting termination wrong, do you think that’s fair?
Tariq: Yeah most definitely, yeah.
Scott: So there’s probably a couple of termination processes that that really come to mind and when you and I were discussing this, capability termination was one that jumped off the page at me, what exactly does that mean?
Tariq: Yes look capability termination refers to an employee’s ability or lack of ability to perform the inherent requirements of their roles so that could be as a result to their physical capacity or their
mental capacity and I guess in terms of the takeaway for capability termination it always comes down to – Is the employee in a situation where they can no longer medically perform the inherent requirements of their role? So that requires going through a process you know understanding their
current capacity, seeking medical information as to where they can return to their role, what reasonable accommodations can be made to that role and if in view of all those types of things and among any other areas they can’t do their role then you’re potentially looking at the position where they can no longer actually perform the inherent requirements of their role, so not to do with performance conduct it’s purely to do with capacity.
Scott: Yeah so the physical ability just sort of to do it I suppose
Tariq: Or mental.
Scott: Yeah okay good point good point I suppose that’s across every industry too so I mean is there a process on that one for employers? or does it vary depending on the industry depending on the job?
Tariq Yeah look there is a process and it does depend on the job obviously if you’re in a more blue-collar industry or a labour industry you know capability processes or termination would be more common there in terms of the process into I guess to give a brief overview of that you’d be looking for I guess periods of absence not necessarily short term but long term absences as a trigger the employee providing medical information that they you know they’ll be away for a certain period of time now these can be work-related and also non work-related injuries now when they work-related injuries you also have to factor in potential workers compensation into that so it can get very complex and at the end of the day you know ultimately decisions should be made on whether the employee can return to work or not and that’s based on length of absence reasonable accommodations to the role or you know medical evidence indicating that.
Scott: Yes that’s quite a lot to our to consider there just for that one piece isn’t there you can see why a lot of people get unfair dismissal claims on that one Yes definitely. Shifting gears slightly performance management termination is a term that we flagged earlier now I suppose to put it in-eloquently it would be something like “managing someone out” I’m sure is that common? Do you see people trying to do that? Or
Tariq: Yeah most definitely and it’s one used I guess very commonly where an employer is in a situation with an employee where there’s no real issues such as misconduct or anything where they can really look and is this employee is just genuinely performing poorly not meeting the requirements of their role so yeah and that’s I guess where that term managing the employee comes from.
Scott: It tends to be obviously it’s quite risky because it’s coming to a lot of unfair dismissal claims is it a long process?
Tariq: Yes it can be I guess as far as from an unfair dismissal perspective and in terms of looking at previous matters the Commission’s made a determination on what they look at is has the employer gone through a procedural fairness and as part of procedural fairness have they had a discussion with the employee and communicated what those expectations are those expectations specific, measurable, achievable, reliable and timely? So in other words is it fair? Can the employer actually do it? Have they given reasonable training and support to meet those requirements? And they have they been given enough time to you know meet those requirements in other words? So in terms of what we advise we generally look at… again it’s a case by case basis but potentially looking for about three months but yeah you know it definitely there is a specific requirement there.
Scott: Yeah so it’s quite lengthy and I suppose one to tread carefully on Now, terminating an employee often goes awry and these things happen which is why you guys are so busy sometimes employees what’s called abandonment of employment I understand sometimes employees just don’t make it clear whether they’re coming back or talk to us a bit about that one what does that mean? What does abandonment of employment mean?
Tariq: Abandonment of employment is basically when the employee quite literally disappears so you know if they’re required to come to work on Monday and they haven’t come to work you’ve tried contacting them send them emails contact the emergency contacts you may have on file you’ve heard nothing come Tuesday comes Wednesday you still haven’t heard anything then you’re in a potential situation where the employee has abandoned their role so what it essentially means is that
the employee hasn’t come to work you know they’re not returning to work you’ve tried contacting them they haven’t contacted you back and you’re in a situation where well you know – Where is this individual? So at that point what we advise is that you know if you’ve made it numerous attempts to contact this person you go through that abandonment of employment process in writing to
let the employee know that they’ve got a specific time within which to either return to work or you know to contact them and if they fail to do so that will result in termination of their employment by way of abandonment.
Scott: So it’s about making it clear that that something needs to be either said or confirmed here with unfair dismissals it comes down to a lot of the evidence you’ve got so even in abandonment of employment employers should be documenting whether they make contact and who they contacted is that fair? or is it more about just trying to get this employee to let you know?
Tariq: No, that’s 100% correct you know a lot of the I guess defences for unfair dismissal are very process driven and it all comes down to what you can and can’t prove so if you’ve made numerous contacts, document that on file when you sent it. We always advise to send out a notification of abandonment of employment prior to termination so you have written notice to the employee to provide them as much you know opportunity as possible to return to work prior to making a final decision. So you know documentation is key in terms of setting yourself up for success when it comes to an unfair dismissal claim.
Scott: So I suppose that flows quite nicely onto to the next question I was going to put to you we always like to finish with a bit of a top tip for employers. I think you just nailed it – documentation is key – surely that’s got to be up there but what else should employers be doing? Is there something that every time they terminate an employee they should be being careful about?
Tariq: Yeah I think it’s about documentation but also ensuring that the documentation you have from a process and policy perspective is correct and provided to employees so that they are aware it’s at the end of the day to rely on these policies and procedures firstly they need to be correct and fair but also employees need to be aware of the standards and expectations in the workplace and if all that you know if you’ve dotted your I’s and crossed your T’s when you do come to rely on them you’re in the best position possible to apply it and when you do apply it apply consistently across the board to all employees and that essentially you know going back to what I said earlier sets them up for success when it comes to a claim.
Scott: So Tariq, make sure the policies and procedures are in place you’re across it and employees know how to do it as well.
Tariq: Exactly right.
Scott: Spot-on thanks for your time.
Tariq: My pleasure.
Scott: Well there’s the essentials, as Tariq said every termination is different but ultimately it comes down to the process and policies your business is using and how you manage employees on the way out the door as always Employsure’s here to assist so give us a call on 1300 651 415 for any advice in terminating employees or responding to an unfair dismissal claim with this being the lastepisode of our Employsure Essentials podcast series I hope you’ve enjoyed it and certainly learned some things along the way stay tuned to it we’ll have a new podcast series coming in 2018.