Preventative Measures: Reducing the Risk of Employees Suing

Proper Contracts, Policy and Training

A starting point is well prepared contracts of employment, policies and procedures, and training of staff. Vague or poorly drafted terms of a contract or policy, or the lack of such entirely, can often lead to employees challenging their dismissal if employers are to attempt to rely on these.

When proper policy and procedure is in place, and employees have been provided awareness and training in these, employees will often be in a difficult position to challenge management action when they act contrary to these. Clearly defined terms, policies, and procedures ensure employers have a solid point of reference if they wish to assert an employee has engaged in behaviour warranting discipline or dismissal.

Show Cause/Investigations

Many employers often ‘jump the gun’ when it comes to dismissing employees. Issues often arise as to the validity of a reason given for a dismissal, whether an employee has been given an opportunity to respond to such a reason, or in cases of performance, if an employee has been given an opportunity to improve.

Undertaking a well-executed show cause process prior to disciplining/terminating an employee will help reinforce the reasoning behind such action and provide reasonable opportunities to employees to provide their side. Show cause processes and investigations should seek to:

1. Provide a particularised allegation(s) to an employee, including any evidence which may give rise/support the allegation(s);
2. Give the employee ample time to respond to such in writing;
3. Give due consideration to the employee’s response; and
4. Make a reasonable decision based upon consideration of the allegations, any evidence, and any response provided by the employee.

Further, in the cases of performance issues, employees should be provided performance management. Poor performing employees should be presented with the fact that they are underperforming, and targets should be set to improve their performance over a reasonable period of time. If employees are provided such an opportunity to improve, and do not, then a decision to discipline/terminate can be made.

Where employers undertake proper investigations and/or proper performance management, they will typically have a good defensible position if an employee seeks to challenge a decision made in light of such processes.

Consideration of Reasons/Other Matters

A major difficulty employers face is not considering all factors which apply to certain employees. Employers need to consider, prior to taking action against an employee, factors including, but not limited to:

1. Whether the employee has recently taken leave;
2. Whether the employee has been injured/on WorkCover;
3. Whether the employee falls into a category capable of discrimination (such as disability, sex, family responsibilities (i.e. pregnancy or carers);
4. Whether the employee has raised complaints or made inquiries concerning matters in the workplace;
5. The length of the employees employment; and
6. The impact a decision will have on the employee (i.e. financially or personally).

While an employer may terminate someone for reasons other than those expressed above, if an employee is to fall into such a category, there is a risk they may raise that they were terminated because of these, which may be in contravention of legislation (such as general protections or discrimination).

Conclusion

While employers are unable to prevent an employee from instigating a claim against them, if appropriate considerations are made and measures put in place when it comes to disciplining employees, the risk of an employee bringing a claim can be reduced.

It is always recommended that you seek appropriate advice prior to disciplining or terminating an employee.

Should you require assistance with employment contracts, company policy, investigations/show cause, unfair dismissals, general protections, or any employment matter, do not hesitate to contact Saines Legal.

Saines Legal is a full-service employment law firm available to provide tailored advice and guidance in relation to any workplace issues. We have also developed a small business retainer package designed to provide complete employment support at a fixed weekly fee, affording our small business clients complete peace of mind regarding workplace legal obligations and insurance against the costs of any unexpected issues. Do not hesitate to contact us via info@saineslegal.com.au or (07) 3324 1055, to organise a consultation.

Disclaimer

The contents of this article are general in nature and is for information purposes only. The content of this article does not constitute legal advice and should not be used as such. Should you require assistance with a specific legal matter, it is recommended that you seek appropriate advice.

Authors Bradley Ellacott (Lawyer) and Nigel Saines (Principal).