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No written warnings in Sam’s personal employee files.
There were no formal notes kept in Sam’s file in regards to performance reviews.
No disciplinary meetings or hearings prior to Sam’s dismissal
Nil documented timelines for reviews of Sam’s improvement or progress.
No performance reviews or development plans presented by employer.
Sam was dismissed from employment as there was a claim Sam had struck her manager. No investigation into Sam striking Manager – Nil Evidence.
Sam should have had formal meetings discussing her poor performances. None noted in her files.
Coaching and Mentoring should have been offered and a time line drawn up and put into place.
The manager should have notified Supervisor immediately after the alleged physical abuse.
The organisation should have kept copies of Sam’s Medical certificates.
WHAT THE ORGANISATION SHOULD HAVE BEEN DOING FOR IT TO HAVE SUCCESSFULLY
DEFENDED ITS POSITION AGAINST SAM’S CLAIM OF UNFAIR DISMISSAL.
Kept formal notes in Sam’s file about formal performance reviews and meetings that have taken place.
Sam should have had written/formal warnings that have been issue to her.
Sam should have had meetings with Human Resource Managers for performance improvement. Including evidence of training coaching or mentoring. Follow up reviews regarding training etc.
The manager that claimed Sam had hit her should have filed a report with supervisor, not waiting until Sam had called in sick before reporting the matter.
This claim should have been fully investigated by the organisation and the outcome documented.
WHAT WOULD HAVE BEEN THE CORRECT WAY TO TERMINATE SAM IN ACCORDANCE WITH LEGAL AND ORGANISATIONAL REQUIREMENTS?
To give employees 3 written formal warnings to improve performance.
For employee to have received reasonable time and support to improve performance.
After the alleged attack on manager from same, a full investigation taken place. If evidence is clear of a crime, the investigation should be handed over to the police.
In section 17 of the Fair Trading Work Act – The organisation is required to provide an employee a notice of termination in writing.
In Sam’s case, In order to terminate correctly, all processes including non-performances through to support measures and follow up action should have been documented, before termination.
RISK ANALYSIS OF THE CASE AND STRATEGIES TO MITIGATE FUTURE RISKS
Identified Risk Strategy to Mitigate Risk
Employee continually under performing
Provide on Job training, coaching and mentoring. Support for underperforming employees with time lines, opportunities for improvement. Written warnings where there is no improvement.
Compensation claim through Fair Work Australia successful
Performance management, misconduct and dismissal strategies to be implemented and communicated to entire organisation. Follow up on procedures.
Employee lodge unfair dismissal claim with Fair Work Australia
Ensure organisation has all evidence and documentation required to defend a claim.
MISCONDUCT MAY BE DEEMED TO EXIST WHERE
An employee has been previously warned about a particular behaviour.
That an employee is aware of misconduct.
Where an employee has purposely breached guidelines or challenged direct instructions from supervisors.
LIST ANY LEGISLATION THAT APPLIES TO THE SITUATION PRESENTED IN CASE STUDY
Unfair Dismissal legislation applies to most employees working in paid employment in Australia.
In this case, the employee may have physical abused another, and this might come under criminal law as “assault”.
Regular dates for reviews. To monitor performance, ensuring effectiveness and employees are able to obtain support to achieve performance levels.
Upon commencement of employment. The expected performance standards and KPIs are communicated and agreed. Performance reviews 6 monthly
All performance reviews are standard and at regular intervals and all information is documented in employees files. Both employee and supervisor sign review agreement
Keep employees files up to date. Performance reviews need to have sign off sheets attached to review notes. For Employees with great responsibilities, management need do follow ups regularly
WHAT DOCUMENTS DO WE NEED TO BE DEVELOPED FOR THE ORGANISATION TO EVIDENCE THAT IS HAS IMPLEMENTED A PROCESS TO SUPPORT NON-PERFORMING EMPLOYEES
Sign off sheets for the employee and employer to sign after reviews.
Note page for recording meeting minutes of performance meetings, where non-performance was identified.
A document for recording ‘action plan’ example- what actions are taken to support the employee, this template should also include dates, milestones and deadlines.
A template for the issue of warnings and notice of termination.
DESCRIPTION OF HOW ALL STEPS OF THE PERFORMANCE REVIEW PROCESS AND DISCIPLINARY HEARING PROCESS SHOULD BE PERFORMED AS PER LEGAL REQUIREMENTS AND THE ORGANISATIONAL POLICIES HAVE BEEN DEVELOPED.
What should have been done at each stage?
Performance meeting and review should have been held and documented.
Review the progress, timelines and support to same in order to assist with performance.
Training support and counselling should be offered, provided and documented.
A second performance review meeting, at a set date, all documented.
If progress not satisfactory, a written warning to be issued. Documented and also a copy of warning letter in file.
Further training counselling and support.
If after a considerable amount of time there has been no improvement
And performance is still unsatisfactory; a notice of termination could have been issued in writing and given to employee.
The termination notice must provide notice to employee.
WHEN AND WHERE ASSISTANCE FROM HR SPECIALISTS WOULD HAVE BEEN APPROPRIATE.
HR should have been notified straight away of Sam’s poor performance.
This meeting should have been documented.
WHAT SUPPORT SERVICES COULD HAVE BEEN DEPLOYED IN SAM’S CASE?
New mentor or coach
All support should have been documented as evidence that she was given support
WHAT DOCUMENTATION WOULD HAVE APPROPRIATE AT EACH STAGE
All meetings, training, reviews, coaching and warnings should have been documented.
Courtney from Study Moose
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