Start With the Problem — Not the Outcome
One of the more common conversations the MTA NSW Employment Relations Team has with employers begins with a proposed solution.
“We want to terminate.”
“We want to issue a final warning.”
“We want to change the employee’s position.”
“We need them back at work.”
“We want to reduce their hours.”
The difficulty is that the proposed outcome is often being considered before the employment issue itself has been properly worked through.
That can create unnecessary risk.
Work backwards from the facts
Before deciding what action should be taken, an employer should first establish exactly what problem it is trying to solve.
If the issue is poor performance, what standard is the employee failing to meet?
If it is misconduct, what is alleged to have occurred and what evidence supports the allegation?
If the concern is medical capacity, what are the inherent requirements of the position and what does the current medical evidence actually say about the employee’s capacity to perform them?
If it is attendance, what absences are involved and what explanation or evidence has been provided?
If the issue involves pay or hours, what does the applicable Award, employment contract and actual working arrangement require?
Those questions should come before deciding the outcome.
Evidence first, decision second
This distinction becomes particularly important when termination is being considered.
An employer may have entirely legitimate concerns about an employee and still not yet have sufficient information to safely make a termination decision.
Sometimes another meeting is required.
Sometimes allegations need to be put to the employee.
Sometimes current medical evidence is needed.
Sometimes payroll records need to be checked.
Sometimes the employment contract or Award produces an answer different from what everybody assumed.
Taking that additional step is not unnecessary delay.
It is often what makes the eventual decision defensible.
Keep an open mind
Procedural fairness also requires more than simply arranging a meeting before implementing a decision that has already been made.
If an employee is being asked to respond to allegations or concerns, there needs to be a genuine opportunity for that response to influence the outcome.
That does not prevent an employer from having serious concerns.
It does mean the final decision should follow the process rather than precede it.
There is a significant difference between:
“We have decided to terminate. How do we do it?”
and:
“We have these concerns. What is the appropriate process and where could it reasonably lead?”
The second question generally produces a much safer employment relations process.
This applies beyond termination
The same principle applies when changing employment arrangements.
Before changing hours, duties, remuneration or working arrangements, identify the contractual and Award position first.
Before deciding that additional hours are overtime, establish what the employee’s ordinary hours actually are.
Before deciding an employee is incapable of returning to work, obtain appropriate evidence about their capacity and the inherent requirements of their position.
And before treating something as misconduct, establish what occurred and give the employee an appropriate opportunity to respond.
The objective is not to make employment decisions unnecessarily complicated.
It is to make them properly.
A clear issue, supported by evidence and followed by a fair process, generally produces a much stronger decision.
Start with the problem. Establish the facts. Follow the process. Then decide the outcome.
If you are considering disciplinary action, changes to employment arrangements, medical incapacity or termination, contact the MTA NSW Employment Relations Team before making the final decision.