Sam is a programmer at a small security company. She has recently missed acouple of deadlines on a project. Sam has been pretty upset about this. She isa diligent worker, however the organisation has started working on a newprogramming language and Sam is not familiar with it.
You are Sam’s manager and are familiar with your predecessor’s methods fordealing with her. She would come out and yell at Sam and then go back to heroffice. Sam has a staff files show that there have been no verbal or writtenwarnings recorded against her.
As Sam’s manager you have been managing Sam more effectively. You havebeen spending time to try and understand Sam’s issues and have reallocatedresources in order to give Sam some extra time until she is confident andcompetent in using the new programming language. You have not specified anytimelines for a performance review to discuss progress in meeting the requiredstandard of performance or taken notes. You have also offered extra training toher.
However in a meeting about her inability to meet her latest deadline, Samphysically struck you and walked out of the office. She has not returned.Sam contacted her doctor after the meeting and was given a medical certificateclaiming stress as the reason for her absence and given 7 days leave. This wassent to and received by the organisation on the day following your meeting withSam. Sam called and verified with the Human Resources department that thecertificate had been filed within the organisation’s systems.
Three days after your meeting with Sam you advised your supervisor that shehad struck you and has since reported in ill; this advice being received from theHuman Resources department. A meeting between you, your supervisor and the Human Resources department is convened and a decision is made to dismiss Sam on the basis of serious misconduct. A letter was sent by registered mail toSam’s personal mail address.
Two days later Sam filed an unfair dismissal claim with the Australian IndustrialRelations Commission (AIRC). The organisation received a letter from the AIRC to attend a hearing.
Sam wins the hearing as no evidence was provided by the company to supportits case of dismissal on the grounds of misconduct or serious misconduct.
The hearing went in Sam’s favour for the following reasons:
• The employer failed to follow a formal disciplinary process.
• There was no impartial investigation carried out.
• There were no records of any notes provided by the employer to back theclaims that there had been meetings and reviews. The only writtenevidence produced was the termination letter.
• The original version of the medical certificate was not produced in thehearing by the company.
• Sam produced a verified copy of her medical certificate in the hearingalong with email evidence from the Human Resources departmentconfirming that the medical certificate had been received by theorganisation and entered into its files.
• No documented evidence of any meetings, coaching sessions had beenkept by the employer.
• No performance management review or development plans werepresented by the employer.
• There were no copies of signed agreements reviewing Sam’s progress(performance reviews and development plans) submitted by theemployer.
• No written documents outlining timelines were given for monitoring orreviewing Sam’s progress were submitted by the employer.
• No formal disciplinary hearings had taken place prior to Sam’s dismissal.
• Sam was not formally stood down while an investigation was carried out.
• There was no physical evidence to support the serious misconduct claimthat the manager has been struck as no witnesses were called to verify whether an attack had taken place.
No senior managers or Human Resource department specialists werepresent in any meeting where Sam was being warned of poorperformance.
• There was no evidence to support the claim of misconduct by Sam. Themanager had not documented any written warnings in Sam’s file. Theonly agreements that had been reached between Sam and the managerwere verbal.
Sam was awarded costs of approximately $5000 for lost salary and wages and afurther $5,000 for emotional distress.
After the decision was handed down, Rob the Senior Human Resources Managerapproaches you to discuss the reasons behind the decision going in favour ofSam. Rob wants a written report on his desk by the end of the week giving thebackground and reasons why the decision went in Sam’s favour against the organisation.
As part of your brief from Rob, he would like to see a completed risk assessmentidentifying areas that the organisation needs to address and implement in orderto prevent this type of situation occurring again. The information in the reportwill guide whether the organisation will pursue an appeal.
Based on the findings of your report, Rob decides not to proceed with an appealbut to develop and implement a new Performance Management System.Rob recommends that the organisation follow the two processes as outlinedbelow to handle:
a) Performance Reviews for all staff
A report that outlining the reasons as to why the organisation lost its case and also what it ought to have been doing for it to have successfully defended its position against Sam’s claim of unfair dismissal.
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