PDA

View Full Version : Interesting real life performance mgmt scenario - what would you do? How would you handle this situation?



Snooze
08-11-2011, 08:01 AM
This is a real scenario (not mine) but its an interesting one none the less. So thought id share!

Background:
An employee whose role is primarily customer service orientated, has been displaying behavioural issues in the workplace along the lines of vocalising their frustrations about customers and displayng a rude attitude towards other co-workers. This employee has been previously given a formal warning regarding their behaviour for which a customer complaint was received. This behaviour is impacting on the team with morale and productivity affected.

It is generally known that the employee may suffer a form of mental illness and takes medication for it. Long standing employee, 12 years service perhaps?

Current Situation:
Following a non-formal complaint received by two co-workers, a discussion was held with the employee, their support person, direct manager and another manager as a company witness. The discussion was to find out what was causing this behaviour and to clarify the managers expectation of behaviour from the employee. During the discussion it was discussed that the displayed behaviour is not acceptable and will not be tollerated. The employee didnt dissgree that they behaved this way, but they tried to justify it by saying they cant help it, its the way they are! The employee claimed a couple of things in her job cause frustration, one was dealing with the customers, other was one of the colleagues (who is sometimes late to work, separate issue). Ways to manage the behaviour were discussed ie: taking a few minutes to think and calm down before responding to a customer or client, leaving the office to have 10minute breaks when tension is building etc. A follow up meeting in 1 month was also planned and discussed.

After this conversation, the employee left for the afternoon with their support person. She was obviously affected by this event, as she sat in her car for 1hr talking to their support.

The following day, employee has rung her manager to advise she wont be coming in to work. Couldnt say why, but asked if he could call her later on. He did, and she told him that her doctor has given her 1 month off work for stress. Employee has a large amount of personal leave available to use.

A general "unfit for work" medical certificate has since been received. No diagnosis has been given. No indication if it is work related or personal. To make matters worse, the employee has done this previously, when they were issued with a warning they took 6 weeks off work. This is very frustrating for the manager to effectively performance manage them. Needless to say the company director is not impressed with the employee and would prefer them out of the business.

Manager has contacted employee since they have been off to find out how they were going, are they ok? Do they need help with counselling etc? Employee has said no, they are providing their own. Wouldnt say much.

Manager is reluctant to let the employee just return to work in the same role, doing the same thing, without making some changes. It seems there is a trigger in the workplace somewhere that is causing this frustration. But they dont know what that is.

So what would you do???

Options that have been discussed:

Meeting with the employee upon their return to re-establish the expected behaviour and discuss making changes to the employees role to relieve any "frustrations"?
Restructuring the office to make the role redundant? (this is a long shot and would require legal advise)
Arranging a rehabilitation consultant to assess the employee's situation and help with their return to work?
Allow the employee to return to work as if nothing has happenned and then wait for the behaviour to repeat itself, then issue a final warning or possible terminaton?


Thanks for reading this far!
Would LOVE to hear your ideas!!!!

HeyPete
08-11-2011, 10:10 AM
Hi Snooze, interesting case.

All are good options except for #2.

If there is any causal link between Redundancy and behavioural issues / poor performance, the employee has an unfair dismissal case which is more than likely going to be successful.

I think everything else you mentioned is pretty much on the money...

1. start with providing all the help the company has to offer to get the employee back to work
2. upon return re-establish the expected behaviours and discuss changes that can be made to releive frustrations
3. if the behaviour repeats, proceed with termination process (eg final warning, notice of termination, give opportunity for employee to explain themselves, terminate)


It is interesting that you mentioned the employee suffers a form of mental illness, and whilst some extra care must be taken throughout the process, in the end the employer has to treat the behaviour, and not the illness. ie. treat them like a normal employee.

Cottoneyes
08-11-2011, 11:43 AM
Ask the employee to provide medical clearance that they are okay to return to work before allowing them to return to the workplace. They have mentioned stress, which could be seen to be a workplace affected condition, so like any workcover claim there should be medical approval that they are okay to resume work. Not sure if you could request this medical clearance come from the same medical professional or at least medical centre that the current certificate has come from?

When the initial discussion was occuring and they claimed it was "the way they were", would have been the time to subtly drive the conversation towards whether they were in the role they wished to be in with a longer term view of career counselling to assist them find a new career path that would better fulfil them, and support to assist them towards this. It might have been the right role 12 years ago, and even up to one year ago, however people change their perspective on careers and what they want out of life as evidenced by the number of sea and tree changes seen in modern society. If they are just there for the paycheque and nothing else, the problems will continue and it's easier to let them decide it's time to change careers than you push them.

Moz
08-11-2011, 11:58 AM
I find this particularly interesting because of the mental illness factor and how that may be exacerbated by stress in the workplace. I think we are close to seeing workplace stress being classed as an OHS issue, if it isn't already (I believe it is in the UK).

If someone becomes injured or disabled and that injury or disability impacts on how they do their job, do you just treat them like everyone else or do you make allowances for their injury or disability?

The same should apply to mental illness in my opinion.

Cottoneyes
08-11-2011, 12:08 PM
I find this particularly interesting because of the mental illness factor and how that may be exacerbated by stress in the workplace. I think we are close to seeing workplace stress being classed as an OHS issue, if it isn't already (I believe it is in the UK).

If someone becomes injured or disabled and that injury or disability impacts on how they do their job, do you just treat them like everyone else or do you make allowances for their injury or disability?

The same should apply to mental illness in my opinion.

But is it more dangerous to be making the assumption of mental illness when it has not been officially diagnosed and communicated officially to the employer, by some means other than office gossip?

Very fine line to walk, if you proceed and it got out you were thinking they had mental illness and needed help for it when they actually had no mental illness, are you then putting a slander suit on top of a constructive dismissal case?

Qld IR Consultant
08-11-2011, 01:30 PM
First off their is no such thing as "stress" leave. I agree with HeyPete. Cover your bases in terms of the company wanting to assist with rehabilitating the worker back into the company. Upon their return you need to document and formalise expectations and consequences. If needs be you can then proceed with termination. Don't be caught out either with your warnings, the 3 warnings is an urban myth. If they have already had one, you don't need to give them another.

HeyPete
08-11-2011, 06:12 PM
I find this particularly interesting because of the mental illness factor and how that may be exacerbated by stress in the workplace. I think we are close to seeing workplace stress being classed as an OHS issue, if it isn't already (I believe it is in the UK).

If someone becomes injured or disabled and that injury or disability impacts on how they do their job, do you just treat them like everyone else or do you make allowances for their injury or disability?

The same should apply to mental illness in my opinion.

Physical injury in the workplace is a OHS issue. The workers compensation would 'compensate' for their inability to work, and the business has a right to employ the right person who can do the job effectively.

In regards to mental illness, if its proven that the mental illness was a result of the work they did, then I would say this also comes under OHS and workers compensation. This would be hard to prove though... unless you are in the human traficking or slave labour trade.

However mental illness isn't a defence for poor performance, and if the employee is not competent to do the the job, then they are a liability to the company.

Moz
08-11-2011, 10:02 PM
I'll ask the question again, but this time it's not rhetorical (I'm not talking about an injury or a disability caused by work).

If someone becomes injured or disabled and that injury or disability impacts on how they do their job, do you just treat them like everyone else or do you make allowances for their injury or disability?

Moz
08-11-2011, 10:05 PM
First off their is no such thing as "stress" leave.

Did anyone say there was?

HeyPete
09-11-2011, 09:38 AM
I'll ask the question again, but this time it's not rhetorical (I'm not talking about an injury or a disability caused by work).

If someone becomes injured or disabled and that injury or disability impacts on how they do their job, do you just treat them like everyone else or do you make allowances for their injury or disability?

You'd have to be heartless to not try and make the necessary changes first to accomodate for the employee and their changing conditions, but in the end if the business can't support it, then the business can't support it.

Snooze
09-11-2011, 02:42 PM
Wow, thanks everyone to the great responses.:D

I think its important to mention it is NOT CONFIRMED that the employee has a mental illness. The employee is not about to disclose that information either. Its a belief the manager has given the various comments that the employee has made in the past.

HeyPete - option #2 is a tricky one. I think if they were to go down that path they would definately be taking a risk. However I dont think redundancy would be too far fetched considering they are a smaller business and they have actually made several employees redundant in the last few months. Either way, they will get thorough legal advise before embarking on that path!

Cottoneyes - A medical clearance is a great idea! Will keep that in mind.
As for career aspirations etc. a discussion has been held with the employee in the past about this. Well virtually...they have none. They are a mature age worker, close to retirement and they have said they dont think they could do anything else. They are definately just there for a paycheque! The manager is aware of comments being made along the line of "i just want the sack so I get my benefits and can claim early super". Also being a smaller company, realistically the liklihood of there being other roles they could develop in are slim.

One of the concerns is that as soon as the employee is brought into a discussion again, they will just repeat the "im unfit for work" scenario and take more time off work. The manager thinks the employee may have about another 2months of personal leave accrued. I guess at some point they will run out!!

Ok, so the way I see it, if the employee was a labourer and they had a broken leg, they would likely need adjustments to their role to enable them to return to work. A consultant could be brought in to do an occupational assessment on the workplace to determine what changes might be required.

So how about we treat this the same way? They get a consultant to assess the fitness for work sitaution and obtain a medical clearance before returning to work? If changes to the role are recommended then im sure they will be accommodated as best as possible. Only problem is this is going to require cooperation from the employee. By the sounds of it im doubtful this will happen! But at least the company could show they have attempted to manage the issue.

Does anybody know can the employer enforce that they see another doctor for an independant assessment?

There may be no choice other than to put them back in the role and wait for the behaviour to repeat......step by step process to termination.

belinda
10-11-2011, 03:25 PM
This is a great forum topic, and there has been some great suggestions.
As you do not know what the medical issue is, as it was not listed on the certificate - how are you going to assess the return of this employee back into the workplace? I would definiately request a medical clearance that they are fit to return to work and then you could possible go down the assessment stage.

And like you said it may be that you have no choice but to put them back into the position, review the warning provided before the time of work and continue with the performance management process towards termination.

Please keep us in the loop, as would really like to know what happens from here.

HeyPete
10-11-2011, 04:02 PM
I'll ask the question again, but this time it's not rhetorical (I'm not talking about an injury or a disability caused by work).

If someone becomes injured or disabled and that injury or disability impacts on how they do their job, do you just treat them like everyone else or do you make allowances for their injury or disability?

Hi Moz

Further to the above... I found a case that may interest you.

Michael Harte
v
Forbes Australia Pty Ltd T/A Hunt Boilers
(U2011/8838)

injured worker terminated due to not being able to perform inherent requirements of job – need to address whether applicant able to perform inherent requirement of his substantive position rather than position involving light duties – not satisfied applicant able perform inherent requirements of substantive position – valid reason for termination – applicant refused alternative position – termination not harsh, unjust or unreasonable

[2011] FWA 6948 (http://www.fwa.gov.au/decisionssigned/html/2011fwa6948.htm)

Snooze
10-11-2011, 04:25 PM
This is a great forum topic, and there has been some great suggestions.
As you do not know what the medical issue is, as it was not listed on the certificate - how are you going to assess the return of this employee back into the workplace? I would definiately request a medical clearance that they are fit to return to work and then you could possible go down the assessment stage.

And like you said it may be that you have no choice but to put them back into the position, review the warning provided before the time of work and continue with the performance management process towards termination.

Please keep us in the loop, as would really like to know what happens from here.

Im thinking that if a occupational type of consultant was used, then they employee may be more inclined to disclose any illness to them. Quite often usng a third party in these sort of situations helps if the employee/employer relationship is fragile. They can often get permission to discuss the nature of the illness with the treating doctor.

Will definately update this forum as the situation progresses, but its likely that its going to take some months before an outcome is ultimately reached.

Moz
10-11-2011, 11:14 PM
Hi Moz

Further to the above... I found a case that may interest you.

Michael Harte
v
Forbes Australia Pty Ltd T/A Hunt Boilers
(U2011/8838)

....... [2011] FWA 6948 (http://www.fwa.gov.au/decisionssigned/html/2011fwa6948.htm)

Thanks for that HeyPete. Very interesting!

Snooze
24-11-2011, 03:04 PM
Hi Everyone!

I just thought id update whats been going on with this situation.

Without any further discussions occurring and whilst on their period of personal leave, the employee has written and resigned from her position. So problem solved! Its all very amicable. I think they just realised that their not cut out for the role and it was causing them too much grief for what its worth.

I dont feel there is any risk of a constructive dismissal here.

So there you go, sometimes these things just work out for the best!

Snooze

HeyPete
25-11-2011, 01:47 PM
there is a definite risk of constructive dismissal here.

Snooze
25-11-2011, 01:58 PM
there is a definite risk of constructive dismissal here.

I dont agree.

What are the factors in this case that make you think there is a definite risk?

HeyPete
25-11-2011, 03:25 PM
If the employee can show any signs of undue pressure by the employer to terminate or vary the contract throughout the performance improvement process (admittedly Personal Sickness / Stress), they can raise a constructive dismissal case.

It may not be a strong case, but the risk is still there.

For what its worth, I would deal with this case by acknowleding the resignation letter, however not accepting it until the employee returns from Personal Leave and has a constructive conversation with HR / Management explaining the reasons.

It is irrelevant whether they accept or decline the offer, but you have taken all steps to resolve the matter.

Snooze
28-11-2011, 08:04 AM
If the employee can show any signs of undue pressure by the employer to terminate or vary the contract throughout the performance improvement process (admittedly Personal Sickness / Stress), they can raise a constructive dismissal case.

It may not be a strong case, but the risk is still there.

For what its worth, I would deal with this case by acknowleding the resignation letter, however not accepting it until the employee returns from Personal Leave and has a constructive conversation with HR / Management explaining the reasons.

It is irrelevant whether they accept or decline the offer, but you have taken all steps to resolve the matter.

Thanks for yur feedback.

I still dont think there is a risk of constructive dismissal in this case. There has been no undue pressure to terminate or vary any contract, whatsoever.

There has been a constructive conversation with the manager & employee. The manager contacted the employee upon receiving resignation and employee explained reasons why. Resignation has been accepted and employee has been paid all entitlements. Its allready done.

HeyPete
28-11-2011, 09:29 AM
Excellent stuff.

Thanks for writing up the scenario and following up.

P.