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However, avoiding those conversations can not only have a negative impact on workforce morale and productivity and increase the potential for legal claims to be brought by employees, but also reduce an employer's ability to successfully defend any legal claims.
WHEN MIGHT DIFFICULT WORKPLACE CONVERSATIONS BE NEEDED?
An employer may need to have a difficult conversation with an employee in many situations, which may include when:
- giving ongoing performance feedback
- conducting formal performance reviews
- engaging in a disciplinary process for poor performance or inappropriate behaviour
- dealing with workplace grievances or conflicts, including when conducting workplace investigations
- consulting about major workplace changes
- communicating business decisions, such as decisions to reject leave applications, promotions or pay rises, and
- giving notice of termination of employment.
WHAT LEGAL RISKS CAN ARISE FROM AVOIDING DIFFICULT CONVERSATIONS?
Avoiding, or constantly postponing, difficult conversations with employees in these types of situations can entrench undesirable behaviours or work habits, increase absenteeism and staff turnover, and lower employee morale, which all hinder an organisation's productivity.
Raising workplace issues, and discussing them early and appropriately with employees, can assist with preventing or defending the following types of legal claims.
Unfair dismissal claims
- Warning an employee early on about unsatisfactory performance or behaviour, and giving them a genuine opportunity to respond, is a key element of procedural fairness. Without following this key step a dismissal may be found to be unfair by the Fair Work Commission.
- It can be frustrating when defending an unfair dismissal claim to be unable to fully rely on an employee's previous unsatisfactory performance or behaviour merely because a manager or supervisor failed to have a difficult conversation (or two) with the employee about those issues at the time.
- Also, in the case of a genuine redundancy, an employer must be able to show that it has met any obligation it had under a modern award or enterprise agreement to consult with the employee.
Adverse action (or general protections) claims
- Raising underperformance or misconduct with an employee early on, and/or clearly expressing to an employee the reasons behind a business decision which may adversely affect them, can help the employee understand the reasons for that decision.
- This will hopefully make the employee less likely to suspect and argue that a decision was made for a "prohibited reason" (such as on a discriminatory ground, or because the employee sought to exercise a workplace right). In turn, this process, combined with keeping contemporary records of discussions, will help the employer prove what a decision-maker's real reasoning was.
- Again, raising underperformance or misconduct issues at an early stage with employees may reduce the chances of workplace bullying, or accusations of bullying, from occurring.
- Having (and documenting) those difficult conversations may also constitute "reasonable management action", which may assist with defending any application brought from 1 January 2014 under the Fair Work Commission's new anti-bullying powers (see our earlier article)
Although it is important to avoid the potential adverse results of legal claims, it is also critical in minimising the distraction, potential reputational harm, and costs associated with defending them.
WHAT SHOULD EMPLOYERS DO?
To ensure that difficult conversations are not avoided, employers should take steps to make sure that managers and supervisors:
- are educated about the importance of open, honest and timely communication with their staff, and are encouraged to have difficult conversations with their staff when necessary and as soon as possible
- have the necessary skills to carry out difficult conversations in an appropriate manner, and
- are informed about the importance of keeping detailed written records on each difficult conversation that they have with an employee.
Martin Dunne +61 2 9391 3211 email@example.com
Shawn Skyring (North Ryde) +61 2 9804 5732 firstname.lastname@example.org
David Thompson +61 3 8602 9252 email@example.com
John Connelly +61 8 8414 3323 firstname.lastname@example.org
Darren Miller +61 8 9488 1300 email@example.com
Sarah Sealy +61 3 6231 0131 firstname.lastname@example.org
Chris Osborne +61 8 8924 2600 email@example.com