Case Study

Sam is a programmer at a small security company. 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 Sam's manager and are familiar with your predecessor's methods for dealing with her. She would come out and yell at Sam and then go back to her office. Sam has a staff files show that there have been no verbal or written warnings recorded against her.

As Sam's manager you have been managing her more effectively. You have been spending time to try and understand Sam's 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 also 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 7 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, 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 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 attack 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 favour 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 information in the report will guide whether the organisation will 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.

Rob recommends that the organisation follow the two processes as outlined below to handle:

1. Performance Reviews for all staff

Misconduct Investigation Investigation initiated Major? Employee End of stood down Outcomes Discipline Reported Applied Issue Referral to police or other authorities High Level Discipline ProcessScheduled Review Poor 'erformance Organise Prepare for Conduct Document Schedule meeting Appraisal Appraisal Outcomes Followup Performance Appraisal Process