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Disputes in the workplace 

Effective dispute resolution can help employers to maintain good relationships with their employees by dealing with workplace issues at an early stage.  Employees need to know that their grievances will be taken seriously by an employer. A good dispute resolution process may help to avoid the costs of resolving a claim externally; for instance, via arbitration before Fair Work Commission or through litigation in the Federal Court of Australia.

Poor performance and warnings 

An employee can be dismissed for poor performance. If an employer or manager is unhappy with the performance of an employee, they should make the worker aware of their concerns and give them time to improve. 

However, it is a good idea for businesses to have policies in place that outline the number of written and verbal warnings that will be issued to an employee before they are dismissed. It is also a good idea to communicate these policies to all employees so that they understand the process and are aware of their rights and responsibilities. 

An employee can also be dismissed for breaking company rules or policies – but only if the rules have been made clear and the employer is confident the employee was made aware of and understood the rules in the first place.

There are times when employees will formally express dissatisfaction about a situation in the workplace. A grievance will usually be raised by an individual employee, but it may also be initiated by a group of employees or a union acting on their behalf.

Developing grievance and dispute procedures will help employers to resolve problems at the workplace level. These formal procedures set agreed guidelines to be followed to resolve workplace problems. Grievance procedures may be developed internally or set out as a provision in an award or agreement.

Workplace counselling may also assist employees who are having difficulties at work. Counselling can help employees to identify and deal with the causes of work-related problems before they become a major issue.

It is good practice to keep a record of significant problems encountered by employees, including any measures taken to deal with these problems, for example, counselling, further training or warnings about poor performance.

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Counselling and disciplinary procedures 

Counselling skills are skills that employers/managers must learn and practice in order to improve them. They must also be aware of their limitations when counselling employees. They can't solve all the life problems of their staff but they should be able to assist them with difficulties they may be having at work.

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How to conduct an effective counselling session 

Counselling at work is to help people identify the causes of work-related problems, such as poor performance. The employer/manager should not feel that they must identify and solve the causes of personal problems such as depression, alcoholism or marital problems for an employee. If personal problems do become apparent, it is important that employers refer the employee to the appropriate experts.

The following checklist should assist:

 Do's

 Dont's

Give the employee recognition

Don't assume the role of a parent scolding a child

Provide a warm atmosphere of communication

Don't moralise

Encourage the employee to gain insight into the problem

Don't threaten the employee of the likely consequences if they don't get their act together

Give the employee a clear picture of their strengths and weaknesses

Don't get into an argument

Encourage the employee to bring out any conflicts, personal problems and ideas

Don't cut off an employee's comments

Suggest positive steps to rationalise the problem or improve performance

Don't give the employee false hope

Create a desire with the employee to change
Build a level of support that is conducive to both friendliness and efficiency

Don't expect a dramatic change in the employee because of one counselling session

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What if counselling doesn't solve the problem? 

Do not expect improvement immediately or after one counselling session. An employee may need an adjustment period and probably some time to steadily improve. Employers/managers must also be committed to the counselling process and reward and recognise the employee's efforts to improve.

If the counselling doesn't solve the problem, an employer may have to formally discipline the staff member.

To do this, employers must have a disciplinary procedure in place and every employee should be familiar with this system and understand the steps involved.

If an employer is facing a situation where an employee may be dismissed, it is essential that they can document and substantiate their actions.

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Sample disciplinary procedure 

Step 1 - Employees who are performing unsatisfactorily will be counselled so they understand the standards expected of them. They will be offered assistance and guidance in achieving the expected standards.

Step 2 - Confidential records of any counselling undertaken will be made. The employee will be shown and given a copy of the written records and will have an opportunity to comment on its contents. This can be done either in writing or orally. The record will only be placed on the employee's personal file when the employee has been given the opportunity of responding to the record and adding any notations regarding the contents of the record.

Step 3 - Employees whose performance or behaviour is unsatisfactory will be given adequate time to demonstrate a willingness to improve. If at the end of this period the employee shows no willingness to improve in the opinion of the employer, a final warning in writing will be issued to the employee. This notice will inform the employee in writing that disciplinary action up to and including dismissal may be taken if the employee does not cease the unsatisfactory performance or behaviour immediately.

Step 4 - The employer also has the right to summarily dismiss an employee for serious and wilful misconduct.

Step 5 - At every stage of the disciplinary process, the employee has the right to have another employee or union representative present as a witness.

How many warnings should an employee be given before disciplinary action occurs?

There is no hard and fast rule. The employer/manager should give their employee a number of chances to improve their behaviour or conduct. But the employer should not issue a large number of warnings as this could give the staff member the impression that his or her conduct is not really serious and will not merit dismissal.

In general, three warnings would be considered adequate. It is suggested employers make sure that their employee realises the number of warnings to be given will not be open-ended.

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Best employment practice - case studies 

The following case studies outline best employment practices to be implemented at the time of recruiting staff and during their employment which can greatly reduce the chances of unfair dismissal claims.

Case Study One

A butcher lost his unfair dismissal claim after it was found he deliberately contravened health standards and breached quality assurance standards by throwing meat on the floor. These standards were well known and displayed, and all staff had been warned about the consequences of not complying with these standards.

By having policies and procedures displayed and understood by all staff an employer ensures that a disgruntled employee can't claim ignorance.

Case Study Two

An employee who was dismissed for breaching the non-smoking policy won her job back because, although the company had a non-smoking policy, the consequence of breaching was not known nor was the policy adhered to.

If an employer/manager introduces any workplace policies, they must be prepared to enforce them.

Case Study Three

A plant operator lost his unfair dismissal application when he failed to notify his employer about a serious valve malfunction. The employer told the Commission that the employee had been shifted around to various jobs within the company because his disenchantment with his job meant he could not integrate with the various work teams within the business.
He had been counselled but had been given a final warning after the valve malfunction incident. The employer was commended for his perseverance.

By following a proper counselling and disciplinary system the employer avoided a finding against him.

Case Study Four
A sheet-metal worker who was dismissed because he took too long with his work won his unfair dismissal case. It was found that the first time the employee felt his job was in jeopardy was on the actual date of termination. The Commissioner stated that while verbal warnings can be just as effective as written ones, particularly in a small business, what may be intended as a serious warning by an employer could be interpreted by the employee as a passing comment.

Make sure all employees understand the seriousness of the consequences of their poor performance.

Case Study Five

A clerical employee who was late to work almost every day dropped her unfair dismissal claim after conciliation. The employer told the Commission that the woman's lateness had only been approved on two occasions. Although reminded that she was on probation, and needed to improve her timekeeping, she told the company she had difficulty getting up in the morning.

If the employer had used the probation period to adequately counsel and coach the employee on her attendance, then the trip to the Commission may not have been necessary. Also, if timekeeping was an essential requirement for the position, the employer should have probably discussed this at the interview. Chances are the employee may have volunteered that she wasn't a "morning person".

Case Study Six

A club steward was reinstated after being sacked for refusing to do up his top button and tie firmly because it gave him migraine headaches. He supported this claim with a medical certificate.

The employer should have discussed the matter in greater depth with the employee and come up with alternatives that suited both their requirements - such as specially tailored shirts.

Case Study Seven

A storeman and packer, dismissed when the company hired someone who was better qualified, was awarded compensation. The employer argued that a new structure meant that he needed two storemen not three, and he had chosen the other worker who had only been employed for seven weeks because he was older and would find it hard to get work. He also had a family to support.

The Commission rejected this, saying that it was discriminatory to act against the dismissed man because he was young, single and had no children. It was also stated that dismissing the younger man in order to keep the older man's wider talents was not in keeping with decent management principles.

Employers must be sure that they are not acting in a discriminatory way when you dismiss an employee. Most importantly, if an employee doesn't have the skills you need when your business changes directions, it is better to get him or her trained for new skills.

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