Manager wants someone made redundant, dont believe its genuine

[Banger]

Hi

I'm a HR Advisor in a large organisation and im fairly new to the performance management process (and dealing with difficult one-minded senior managers!). I just want to run through this scenario and how im thinking of approaching it - any feedback appreciated please!

Situation: manager says employee is not performing and wants to make them redundant. His words were actually "cant I just sack them, thats what I used to do". Obviously I quickly told him no!

Employee info: Been with company for approx 12 months now. Has apparently had performance issues which manager says they have tried to deal with. No performance management plan has been put in place. Manager is reluctant to spend the time on this and has not taken up previous offers of assistance from HR.

Company: large organisation. Chances of another role in company within the employees field of work are likely. Call themselves an Employer of Choice. Mgmt has reputation of "paying people off" to get rid of them.

What am I going to? I'm going to be addressing this with the manager first thing next week.
Im going to determine if this is a genuine redundancy or not, put aside the performance as I believe this is a separate issue. If them manager can show me that it is a genuine redundancy ie. the position, not the employee, is no longer required in that department, then ill go down the path of consulting with the employee, looking for suitable redeployment options within the company.

If its not genuine, then we will not make redundant and we have a performance management issue on our hands. If this is the case, ill need to put a perf management plan in place (will be difficult seeing the manager reluctant to support).

Thanks for your feedback in advance!

[FWI]

Hi Banger

Quite simply, for redundancy to be effected, the NES of the Fair Work Act 2009 need to be considered if you fall within to scope of the Cth workplace relations laws.

Section 119 is very explicit, in that for an entitlement to redundancy "..the employer no longer requires the JOB done by the employee to be done by ANYONE....

If your manager seeks to make the position 'redundant' he is sanctioning that he no longer seeks to refill the job or pass off the positions functions to other employees. To simply make a redundancy and then refill to position at a later date, opens the way to unfair dismissal claims or unlawful termination claims.

Section 385 of the Fair Work Act 2009 state that unfair dismissal can be satisfied if, subsection (d) the dismissal was not a case of genuine redundancy.

If the company seeks to terminate the employee due to performance issues and the company has not afforded an opportunity for the employee to rectify the perceived underperformance and or fails to seek a reply to the allegations, then again termination would be highly contested to being unfair again in accordance with s385(b) for being harsh, unreasonable or unjust.

IT would appear there are deficiencies in the companies policies in regards to performance management or the manager is not engaging to attempt to bring change or assist in the modification of the performance matters. I would suggest that senior managers or HR remove this from the line manager and seek input from them but make to ultimate performance plans etc or seek to relocate to another position, but this is ultimately a company decision.

[tubefeed]

If it is a large organisation, you will need to consider redeployment before redundancy

[Banger]

Hi and thanks both of you for your responses

We have had some developments since original posting:

At the moment we are following the process for a possible redundancy and im trying to put the performance issues aside (which is proving difficult seeing the manager is frequently in my ear about this employees performance, saying they wont be supported by the rest of the business). Being a large organisation, I am going through the process of redeployment first. The employee has been consulted with and we are exploring a couple of options with them in other areas of the business, so I may be able to place this employee under a differrent work team (and hopefully their performance will improve as a result).

Hopefully something suitable will eventuate in the coming weeks and we can avoid a redundancy!

[Tianna]

I think the performance will need to be addressed regardless. Essentially if performance management fails then termination could be a likely outcome.

It would be sensible to deal with this employee now then shift them to another location and hope the problem goes away. The manager of the employee obviously doesn't want them to continue with him so I think to avoid it happening again follow the company policy on performance management/ disciplinary action.

What has been the progress on this?

[Banger]

Progress report....

Situation was initially treated as a possible redundancy (not performance mgmt at this stage).

In the course of searching for redeployment, an opportunity was identified and presented by another business unit and has subsequently been accepted by the employee.

They are being transferred to the unit shortly and we will address any performance issues then - the issues might even go away with the change in manager!

So far im happy with this outcome!

[Tianna]

Sounds like a good outcome, especially when the current manager didn't appear at all flexible. And your right with a different manager the performance issues may go too!

[Qld IR Consultant]

You need to tread carefully with these types of situations. It may not have been the employees problem, it may have been the manager. Personality conflicts, inadequate training, ego's. There is a multitude of triggers that could have caused this. Although the outcome may seem to work, it would be advisable to watch both the employee and the manager closely.

For what its worth I would have addressed the employee performance issues, the managers issues, then the conflict between the 2 of them. Lot more work but it might save you some work again in the future with either/both of them. Hope all goes well......

[belinda]

A tip I have used in my organisation, and also helps when the laws have changed and Management are still thinking in the old terms "can't I just terminate, this is what we have done normally".
Ensure you have the legal requirements 'what the company needs to do to ensure unfair dismissal'.

I had a situation last year where a Manager and Supervisor wanted to terminate due to performance. However nothing was documented, and they had not gone through the process. I printed off pages from the National Standard and fair Work Act and explained to them the changes in law and the process we need to go through. More of a one on one coaching session on what the company required of them to ensure we follow process and cover the company from any claims.

This really assisted them, understand their responsibilities as Managers. They now understand the process, and document any concerns. Then if anything comes up, we discuss what they have documented and the process they need to take.

I would suggest that you need to get something like this done with the Manager.

[Qld IR Consultant]

Heres a tip I use. Write your unfair dismissal submission before you dismiss them. That way you have identified why it wasn't unfair, why it wasn't unreasonable, and nothing about it was harsh. Works really well for me. Leaves no loopholes for the ambulance chasing lawyers or Trade Union officials.