The purpose of this report is to provide the background and reasons why the decisions by Fair Work Australia were made in Sam’s favour. It identifies areas the company needs to address and implement in order to prevent this type of situation from occurring again.
Work History as Sam’s Team Manager
As Sam’s Team Manager I was aware that my predecessors response when dealing with her lacked in encouragement and was poorly handled. Sam is a diligent worker however, due to the company changing programming language to one Sam was unfamiliar with she has been unable to meet specific deadlines. Time was spent with Sam trying to understand her issues and Resources relocated in order to allow Sam extra time until she was confident and competent using the new programming language.
The offer of additional training was made , but no specific timelines for a performance review to discuss progress on meeting the required standard of performance were given. During the final meeting with Sam about her inability to meet her latest deadline, Sam physically struck myself and left the office.
A Medical certificate was sent to the office the following day, advising Sam was unfit for work due to stress. The receipt of this medical certificate was confirmed over the phone by Sam, to the HR department and conformation made that it had been documented and filed accordingly. It was then the next day that the incident was reported by myself to my supervisor.
A meeting was held with myself, my supervisor and the HR Department, the result was that Sam would be terminated on the basis of serious misconduct.. A letter was sent by registered mail to Sam’s personal address. It was two days later that the unfair dismissal claim was filed by Sam with Fair work Australia.
Fair Work Australia Hearing:
The outcome of the Fair Work Australia hearing between the company and Sam went in Sam’s favor, this was due to insufficient evidence and documentation provided by the company regarding Sam’s dismissal, on the basis of serious misconduct. See attached Risk Analysis (Appendix 1) for Mitigation/Contingencies on Area’s of risk for this case. The hearing was awarded in Sam’s favour because of the following grounds: * There was no formal disciplinary process.
* There was no impartial investigation carried out on the act of misconduct. * There was insufficient documentation of claims of employee meetings and reviews. * The medical certificate given to the company by Sam in its original form was not produced by the company for the hearing. * Sam was able to produce a certified copy of the medical certificate as well as email correspondence between herself and the Human Resources department confirming the companies receipt of the medical certificate. * No records or documents of any meetings or coaching sessions were kept by our company. * No evidence of signed, agreed upon and documented performance management reviews or plans were presented by the company * No formal disciplinary process followed, allowing for an investigation in the lead up to Sam’s dismissal. * There was no evidence proving the misconduct claim had taken place or witnesses to call upon to verify the incident. * During meetings where Sam was warned of poor performance, there were no members of senior management present or human resource department specialists. * There were no documented written warnings in Sam’s file, any agreements made between myself and Sam were verbal. Thus no evidence to support the claim of misconduct by Sam. Proposed Company Strategy for defense against unfair dismissal claims:
For the company in future to successfully defend itself against unfair dismissal claims should there be a case of serious misconduct of an employee it needs to ensure it brings its performance management procedure and staff professional development in...