The problem employee

Hindsight is a wonderful thing.  Sometimes an employer finds, after much effort by the employer and the employee, that the employment relationship just isn’t working.  What, if anything, can an employer do about this?

“No fault” trial provision

If it is clear that a new employee is unsuitable within any contractual “no fault” trial period, careful consideration needs to be given to a dismissal in accordance with that trial provision.  “No fault” trial provisions are discussed in more detail in “Justified Dismissals” in the Toolkit.

Reality check: Are you acting in good faith?

Employment relationships are based on the employer and employee acting in “good faith”.  This includes being “responsive and communicative” and not acting in a manner intended to undermine the employment relationship.  If there is work for an employee to do, the employee attends work, meets reasonable performance standards, fulfils the duties of the role and does not commit misconduct, there is an expectation that the employment relationship will continue.

You cannot dismiss someone simply because you dislike them.  In all but the most extreme cases (where dismissal by reason of incompatibility may take place), a personality clash will not be sufficient justification for a dismissal.

Example: Raylene Bloggs has a wardrobe full of garish sweaters, a laugh like a bandsaw and a fondness for lame “knock-knock jokes”. While this may be a good reason not to socialise with her, it is not a reasonable justification for firing her.

Terminating a person’s employment due to age, ethnicity, political or union affiliation, gender, marital status or sexual orientation is discriminatory and dismissals for these reasons will be unjustified.

It is about the behaviour, not the person

Often, the best approach is to focus on the problematic behaviours. Poor performance and misconduct may ultimately lead to a justified termination.

Poor performance

An example of poor performance is a sales representative who fails to meet monthly targets.  In such a case, a performance management process may be the first step.  This is discussed in more detail in “Justified Dismissals” in the Toolkit.

If the employee’s performance improves, many of the “problems” may be resolved and the employment relationship can continue. Dismissal for poor performance is a process that may take some time and must be handled carefully.

Disciplinary issues

A problem employee may commit misconduct (for example verbally abusing customers or co-workers) or being frequently late to work.

Do not let misconduct go unanswered! All too often employers let past bad behaviour “slide” only to find that they cannot raise it as a relevant factor in a subsequent disciplinary investigation. Warnings can be given over time with the result that relatively minor but repeated misconduct may eventually result in a dismissal.

For more information about disciplinary processes, see “Investigations and Disciplinary Processes” in the Toolkit.

Talking about it: exit by agreement

A dysfunctional employment relationship is unpleasant for all involved and some employees recognise the “writing on the wall” as the employment relationship deteriorates. In such a situation a negotiated (or even mediated) exit may provide a cost-effective and face-saving means of ending the employment relationship.

This should not be done without legal advice.  Extreme care must be taken, because if poorly managed the process could result in a situation where the employee alleges constructive dismissal (for more information see “Constructive Dismissal” in the Toolkit).

Redundancy is not an option

An employer must act in good faith and must have justification for their actions.  If the employee is not truly “superfluous to the needs of the business” then a purported redundancy will be a “sham” and unjustifiable.

What Bartlett Law can do for you

We are specialists in Employment Law.  We are able to assist and advise employers and employees at all stages through performance, investigation, disciplinary, dismissal and personal grievance procedures. We can:

  • Draft and check “no fault” trial provisions and advise on their use;
  • Advise employers on their “good faith” obligations and how they apply;
  • Advise on matters of discrimination;
  • Draft letters and advise employers on performance management processes;
  • Draft letters and assist employers with disciplinary investigations, meetings, warnings and dismissals;
  • Assist employers in exit negotiations and mediations;
  • Advise on restructurings;
  • Advise employees involved in performance management or disciplinary investigations.

Contact us for more information.