Case Study:

Produce a written report for your manager as to why your organisation lost the case of terminating a employee

Procedure

1. Read and analyse the Case Study - Sam's Termination (see Appendix attached).

2. Report that outlines and discusses:

a. the reasons the organisation lost its unfair dismissal case with Fair Work Australia

b. what the organisation should have been doing for it to have successfully defended its position against Sam's claim of unfair dismissal.

c. what would have been the correct way to terminate Sam in accordance with legal and organisational requirements

d. List any legislation that applies to the situation presented in the case study.

e. Develop policies and procedures that an organisation would need to implement to avoid a similar situation occurring and to ensure that disciplinary hearings and terminations are considered to be fair and reasonable. This should be based on relevant legislation.

f. Outline what documents would need to be developed for the organisation to evidence that it has implemented a process to support non-performing employees.

g. Using the case study as an example, describe how all steps of the performance review process and disciplinary hearing process (given to you by Rob) should have been performed as per legal requirements and the organisational policies you have developed, including:

what should have been done at each stage

when and where assistance from HR specialists would have been appropriate

what support services could have been deployed in Sam's case

what documentation would have been appropriate at each stage.

You must provide a written report that outlines and discusses:

The reasons the organisation lost its unfair dismissal case with Fair Work Australia.

What the organisation should have been doing for it to have successfully defended its position against Sam's claim of unfair dismissal?

What would have been the correct way to terminate Sam in accordance with legal and organisational requirements?

Appendix - Case study - Sam's termination

You have recently become a Team Manager at a small security company. Sam is a programmer in your team. She has recently missed a couple of deadlines on a project. Sam has been pretty upset about this. She is a diligent worker; however, the organisation has started working on a new programming language and Sam is not familiar with it.

You are aware of your predecessor's methods for dealing with her. She would come out and yell at Sam and then go back to her office. Sam's employee file that shows that there have been no verbal or written warnings recorded against her.

As Sam's new manager you have been managing her more effectively. You have been spending time to try and understand her issues and have reallocated resources in order to give Sam some extra time until she is confident and competent in using the new programming language. You have not specified any timelines for a performance review to discuss progress in meeting the required standard of performance or taken notes. You have offered extra training to her.

However, in a meeting about her inability to meet her latest deadline, Sam physically struck you and walked out of the office. She has not returned.

Sam contacted her doctor after the meeting and was given a medical certificate claiming stress as the reason for her absence and given seven days' leave. This was sent to, and received by, the organisation on the day following your meeting with Sam. Sam called and verified with the Human Resources department that the certificate had been filed within the organisation's systems.

Three days after your meeting with Sam you advised your supervisor that she had struck you and has since reported in ill; this advice being received from the Human 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 to Sam's personal mail address.

Two days later Sam filed an unfair dismissal claim with Fair Work Australia (FWA). The organisation received a letter from FWA to attend a hearing.

Sam wins the hearing as no evidence was provided by the company to support its 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 the claims that there had been meetings and reviews. The only written evidence produced was the termination letter.

The original version of the medical certificate was not produced in the hearing by the company.

Sam produced a verified copy of her medical certificate in the hearing along with email evidence from the Human Resources department confirming that the medical certificate had been received by the organisation and entered into its files.

No documented evidence of any meetings or coaching sessions had been kept by the employer.

No performance management review or development plans were presented by the employer.

There were no copies of signed agreements reviewing Sam's progress (performance reviews and development plans) submitted by the employer.

No written documents outlining that timelines were given for monitoring or reviewing 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 claim that the manager has been struck as no witnesses were called to verify whether an assault had taken place.

No senior managers or human resource department specialists were present in any meeting where Sam was being warned of poor performance.

There was no evidence to support the claim of misconduct by Sam. The manager had not documented any written warnings in Sam's file. The only agreements that had been reached between Sam and the manager were verbal.

Sam was awarded costs of approximately $5,000 for lost salary and wages and a further $5,000 for emotional distress. After the decision was handed down, Rob, the Senior Human Resources Manager, approaches you to discuss the reasons behind the decision going in favour of Sam. Rob wants a written report on his desk by the end of the week giving the background and reasons why the decision went in Sam's favor against the organisation. As part of your brief from Rob, he would like to see a completed risk assessment identifying areas that the organisation needs to address and implement in order to prevent this type of situation occurring again. The report will guide the organisation in its decision-making over whether to pursue an appeal on Fair Work Australia's ruling. Based on the findings of your report, Rob decides not to proceed with an appeal but to develop and implement a new Performance Management System.